Republic Act No.

6735 August 4, 1989

AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM AND

APPROPRIATING FUNDS THEREFOR

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled::

I. — General Provisions

Section 1. Title. — This Act shall be known as "The Initiative and Referendum Act."

Section 2. Statement of Policy. — The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed.

Section 3. Definition of Terms. — For purposes of this Act, the following terms shall mean:

(a) "Initiative" is the power of the people to propose amendments to the Constitution or to
propose and enact legislations through an election called for the purpose.

There are three (3) systems of initiative, namely:

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

the Constitution;

a.2. Initiative on statutes which refers to a petition proposing to enact a national

legislation; and

a.3. Initiative on local legislation which refers to a petition proposing to enact a

regional, provincial, city, municipal, or barangay law, resolution or ordinance.

(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent to
Congress or the local legislative body for action.

(c) "Referendum" is the power of the electorate to approve or reject a legislation through an
election called for the purpose. It may be of two classes, namely:

c.1. Referendum on statutes which refers to a petition to approve or reject an act or

law, or part thereof, passed by Congress; and

c.2. Referendum on local law which refers to a petition to approve or reject a law,
resolution or ordinance enacted by regional assemblies and local legislative bodies.

(d) "Proposition" is the measure proposed by the voters.

(e) "Plebiscite" is the electoral process by which an initiative on the Constitution is approved
or rejected by the people.
 (f) "Petition" is the written instrument containing the proposition and the required number of
signatories. It shall be in a form to be determined by and submitted to the Commission on
Elections, hereinafter referred to as the Commission.

(g) "Local government units" refers to provinces, cities, municipalities and barangays.

(h) "Local legislative bodies" refers to the Sangguniang Panlalawigan, Sangguniang

Panlungsod, Sangguniang Bayan, and Sangguniang Nayon.

(i) "Local executives" refers to the Provincial Governors, City or Municipal Mayors and
Punong Barangay, as the case may be.

Section 4. Who may exercise. — The power of initiative and referendum may be exercised by all
registered voters of the country, autonomous regions, provinces, cities, municipalities and
barangays.

Section 5. Requirements. — (a) To exercise the power of initiative or referendum, at least ten per
centum (10%) of the total number of the registered voters, of which every legislative district is
represented by at least three per centum (3%) of the registered voters thereof, shall sign a petition
for the purpose and register the same with the Commission.

(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum
(12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters
therein. Initiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.

(c) The petition shall state the following:

c.1. contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2. the proposition;

c.3. the reason or reasons therefor;

c.4. that it is not one of the exceptions provided herein;

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

c.6. an abstract or summary in not more than one hundred (100) words which shall
be legibly written or printed at the top of every page of the petition.

(d) A referendum or initiative affecting a law, resolution or ordinance passed by the

legislative assembly of an autonomous region, province or city is deemed validly initiated if
the petition thereof is signed by at least ten per centum (10%) of the registered voters in the
province or city, of which every legislative district must be represented by at least three per
centum (3%) of the registered voters therein; Provided, however, That if the province or city
is composed only of one (1) legislative district, then at least each municipality in a province
or each barangay in a city should be represented by at least three per centum (3%) of the
registered voters therein.
 (e) A referendum of initiative on an ordinance passed in a municipality shall be deemed
validly initiated if the petition therefor is signed by at least ten per centum (10%) of the
registered voters in the municipality, of which every barangay is represented by at least three
per centum (3%) of the registered voters therein.

(f) A referendum or initiative on a barangay resolution or ordinance is deemed validly initiated

if signed by at least ten per centum (10%) of the registered voters in said barangay.

Section 6. Special Registration. — The Commission on Election shall set a special registration day
at least three (3) weeks before a scheduled initiative or referendum.

Section 7. Verification of Signatures. — The Election Registrar shall verify the signatures on the
basis of the registry list of voters, voters' affidavits and voters identification cards used in the
immediately preceding election.

II. — National Initiative and Referendum

SECTION 8. Conduct and Date of Initiative or Referendum. — The Commission shall call and
supervise the conduct of initiative or referendum.

Within a period of thirty (30) days from receipt of the petition, the Commission shall, upon
determining the sufficiency of the petition, publish the same in Filipino and English at least twice in
newspapers of general and local circulation and set the date of the initiative or referendum which
shall not be earlier than forty-five (45) days but not later than ninety (90) days from the determination
by the Commission of the sufficiency of the petition.

Section 9. Effectivity of Initiative or Referendum Proposition. — (a) The Proposition of the

enactment, approval, amendment or rejection of a national law shall be submitted to and approved
by a majority of the votes cast by all the registered voters of the Philippines.

If, as certified to by the Commission, the proposition is approved by a majority of the votes
cast, the national law proposed for enactment, approval, or amendment shall become
effective fifteen (15) days following completion of its publication in the Official Gazette or in a
newspaper of general circulation in the Philippines. If, as certified by the Commission, the
proposition to reject a national law is approved by a majority of the votes cast, the said
national law shall be deemed repealed and the repeal shall become effective fifteen (15)
days following the completion of publication of the proposition and the certification by the
Commission in the Official Gazette or in a newspaper of general circulation in the
Philippines.

However, if the majority vote is not obtained, the national law sought to be rejected or
amended shall remain in full force and effect.

(b) The proposition in an initiative on the Constitution approved by a majority of the votes
cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in an
election called for the purpose shall become effective fifteen (15) days after certification and
proclamation by the Commission.
Section 10. Prohibited Measures. — The following cannot be the subject of an initiative or
referendum petition:

(a) No petition embracing more than one (1) subject shall be submitted to the electorate; and

(b) Statutes involving emergency measures, the enactment of which are specifically vested
in Congress by the Constitution, cannot be subject to referendum until ninety (90) days after
its effectivity.

Section 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law, may
file a petition for indirect initiative with the House of Representatives, and other legislative bodies.
The petition shall contain a summary of the chief purposes and contents of the bill that the
organization proposes to be enacted into law by the legislature.

The procedure to be followed on the initiative bill shall be the same as the enactment of any
legislative measure before the House of Representatives except that the said initiative bill shall have
precedence over the pending legislative measures on the committee.

Section 12. Appeal. — The decision of the Commission on the findings of the sufficiency or
insufficiency of the petition for initiative or referendum may be appealed to the Supreme Court within
thirty (30) days from notice thereof.

III. — Local Initiative and Referendum

SECTION 13. Procedure in Local Initiative. — (a) Not less than two thousand (2,000) registered
voters in case of autonomous regions, one thousand (1,000) in case of provinces and cities, one
hundred (100) in case of municipalities, and fifty (50) in case of barangays, may file a petition with
the Regional Assembly or local legislative body, respectively, proposing the adoption, enactment,
repeal, or amendment, of any law, ordinance or resolution.

(b) If no favorable action thereon is made by local legislative body within (30) days from its
presentation, the proponents through their duly authorized and registered representative may
invoke their power of initiative, giving notice thereof to the local legislative body concerned.

(c) The proposition shall be numbered serially starting from one (1). The Secretary of Local
Government or his designated representative shall extend assistance in the formulation of
the proposition.

(d) Two or more propositions may be submitted in an initiative.

(e) Proponents shall have one hundred twenty (120) days in case of autonomous regions,
ninety (90) days in case of provinces and cities, sixty (60) days in case of municipalities, and
thirty (30) days in case of barangays, from notice mentioned in subsection (b) hereof to
collect the required number of signatures.

(f) The petition shall be signed before the Election Registrar, or his designated
representative, in the presence of a representative of the proponent, and a representative of
the regional assemblies and local legislative bodies concerned in a public place in the
autonomous region or local government unit, as the case may be. Signature stations may be
established in as many places as may be warranted.
 (g) Upon the lapse of the period herein provided, the Commission on Elections, through its
office in the local government unit concerned shall certify as to whether or not the required
number of signatures has been obtained. Failure to obtain the required number is a defeat of
the proposition.

(h) If the required number of the signatures is obtained, the Commission shall then set a date
for the initiative at which the proposition shall be submitted to the registered voters in the
local government unit concerned for their approval within ninety (90) days from the date of
certification by the Commission, as provided in subsection (g) hereof, in case of autonomous
regions, sixty (60) days in case of the provinces and cities, forty-five (45) days in case of
municipalities, and thirty (30) days in case of barangays. The initiative shall then be held on
the date set, after which the results thereof shall be certified and proclaimed by the
Commission on Elections.

Section 14. Effectivity of Local Propositions. — If the proposition is approved by a majority of the
votes cast, it shall take effect fifteen (15) days after certification by the Commission as if affirmative
action thereon had been made by the local legislative body and local executive concerned. If it fails
to obtain said number of votes, the proposition is considered defeated.

Section 15. Limitations on Local Initiatives. — (a) The power of local initiative shall not be
exercised more than once a year.

(b) Initiative shall extend only to subjects or matters which are within the legal powers of the
local legislative bodies to enact.

(c) If at any time before the initiative is held, the local legislative body shall adopt in toto the
proposition presented, the initiative shall be cancelled. However, those against such action
may, if they so desire, apply for initiative in the manner herein provided.

Section 16. Limitations Upon Local Legislative Bodies. — Any proposition or ordinance or
resolution approved through the system of initiative and referendum as herein provided shall not be
repealed, modified or amended, by the local legislative body concerned within six (6) months from
the date therefrom, and may be amended, modified or repealed by the local legislative body within
three (3) years thereafter by a vote of three-fourths (3/4) of all its members: Provided, however, that
in case of barangays, the period shall be one (1) year after the expiration of the first six (6) months.

Section 17. Local Referendum. — Notwithstanding the provisions of Section 4 hereof, any local
legislative body may submit to the registered voters of autonomous region, provinces, cities,
municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted
or approved.

Said referendum shall be held under the control and direction of the Commission within sixty (60)
days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days
in case of barangays.

The Commission shall certify and proclaim the results of the said referendum.

Section 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper courts
from declaring null and void any proposition approved pursuant to this Act for violation of the
Constitution or want of capacity of the local legislative body to enact the said measure.
 IV. — Final Provisions

SECTION 19. Applicability of the Omnibus Election Code. — The Omnibus Election Code and
other election laws, not inconsistent with the provisions of this Act, shall apply to all initiatives and
referenda.

Section 20. Rules and Regulations. — The Commission is hereby empowered to promulgate such
rules and regulations as may be necessary to carry out the purposes of this Act.

Section 21. Appropriations. — The amount necessary to defray the cost of the initial
implementation of this Act shall be charged against the Contingent Fund in the General
Appropriations Act of the current year. Thereafter, such sums as may be necessary for the full
implementation of this Act shall be included in the annual General Appropriations Act.

Section 22. Separability Clause. — If any part or provision of this Act is held invalid or
unconstitutional, the other parts or provisions thereof shall remain valid and effective.

Section 23. Effectivity. — This Act shall take effect fifteen (15) days after its publication in a
newspaper of general circulation.

Approved: August 4, 1989

G.R. No. 111230 September 30, 1994

ENRIQUE T. GARCIA, ET AL., petitioners,

vs.
COMMISSION ON ELECTIONS and SANGGUNIANG BAYAN OF MORONG,
BATAAN, respondents.

Alfonzo M. Cruz Law Offices for petitioners.

PUNO, J.:

The 1987 Constitution is borne of the conviction that people power can be trusted to check excesses
of government. One of the means by which people power can be exercised is thru initiatives where
local ordinances and resolutions can be enacted or repealed. An effort to trivialize the effectiveness
of people's initiatives ought to be rejected.

In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the Sangguniang Bayan ng Morong, Bataan
agreed to the inclusion of the municipality of Morong as part of the Subic Special Economic Zone in
accord with Republic Act
No. 7227.

On May 24, 1993, petitioners filed a petition 2 with the Sangguniang Bayan of Morong to annul
Pambayang Kapasyahan Blg. 10, Serye 1993. The petition states:

I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye

1993 ng Sangguniang Bayan para sa pag-anib ng Morong sa SSEZ na walang
kondisyon.

II. Palitan ito ng isang Pambayang Kapasiyahan na aanib lamang ang Morong sa
SSEZ kung ang mga sumusunod na kondisyones ay ipagkakaloob, ipatutupad at
isasagawa para sa kapakanan at interes ng Morong at Bataan:

(A). Ibalik sa Bataan ang "Virgin Forests" — isang bundok na hindi

nagagalw at punong-puno ng malalaking punong-kahoy at iba'-ibang
halaman.

(B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito sa Bataan.

(K). Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa

pagkukuenta ng salaping ipinagkakaloob ng pamahalaang national o
"Internal Revenue Allotment" (IRA) sa Morong, Hermosa at sa
Lalawigan.

(D). Payagang magtatag rin ng sariling "special economic zones" ang

bawat bayan ng Morong, Hermosa at Dinalupihan.

(E). Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain

ng SBMA.
 (G). Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng
nasabing mga lupa.

(H). Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na

oras at bukod dito sa magbukas pa ng pinto sa hangganan naman ng
Morong at Hermosa upang magkaroon ng pagkakataong umunlad rin
ang mga nasabing bayan, pati na rin ng iba pang bayan ng Bataan.

(I). Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at

Morong-Tasig-Dinalupihan para sa kabutihan ng mga taga-Bataan at
tuloy makatulong sa pangangalaga ng mga kabundukan.

(J). Magkaroon ng sapat na representasyon sa pamunuan ng SBMA

ang Morong, Hermosa at Bataan.

The municipality of Morong did not take any action on the petition within thirty (30) days after its
submission. Petitioners then resorted to their power of initiative under the Local Government Code of
1991. 3 They started to solicit the required number of signatures 4 to cause the repeal of said
resolution. Unknown to the petitioners, however, the Honorable Edilberto M. de Leon, Vice Mayor
and Presiding Officer of the Sangguniang Bayan ng Morong, wrote a letter dated June 11, 1993 to
the Executive Director of COMELEC requesting the denial of " . . . the petition for a local initiative
and/or referendum because the exercise will just promote divisiveness, counter productive and
futility." 5 We quote the letter, viz:

The Executive Director

COMELEC
Intramuros, Metro Manila

S i r:

In view of the petition filed by a group of proponents headed by Gov. Enrique T.

Garcia, relative to the conduct of a local initiative and/or referendum for the
annulment of Pambayang Kapasyahan Blg. 10, Serye 1993, may we respectfully
request to deny the petition referred thereto considering the issues raised by the
proponents were favorably acted upon and endorsed to Congress and other
government agencies by the Sangguniang Bayan of Morong.

For your information and guidance, we are enumerating hereunder the issues raised
by the petitioners with the corresponding actions undertaken by the Sangguniang
Bayan of Morong, to wit:

ISSUES RAISED BY PROPONENTS

I. Pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye ng taong 1993.

II. Palitan ito ng isang Kapasyahang Pag-anib sa SSEZ kung:

a) Ibabalik sa Morong ang pag-aaring Grande Island, kabundukan at

Naval Reservation;
 b) Ibase sa aring Lupa ng LGU ang kikitain at mapapasok na
manggagawa nila sa SSEZ;

c) Isama ang nasabing lupa sa pagkukuwenta ng "IRA" ng Morong,

Hermosa at Dinalupihan;

d) Makapagtatag ng sariling "economic zones" ang Morong, Hermosa

at Dinalupihan;

e) Pabayaan bukas ang pinto ng Morong patungong SSEZ at

magbukas ng dalawang (2) pinto pa;

(f) Konkretohin ang daang Morong papunta sa Orani at Dinalupihan;

g) Pumili ng SBMA Chairman na taga-ibang lugar.

ACTIONS UNDERTAKEN BY THE SB OF MORONG

1. By virtue of R.A. 7227, otherwise known as the Bases Conversion Development

Act of 1992, all actions of LGU's correlating on the above issues are merely
recommendatory in nature when such provisions were already embodied in the
statute.

2. Corollary to the notion, the Sangguniang Bayan of Morong passed and approved
Pambayang Kapasyahan Blg. 18, Serye 1993, requesting Congress of the
Philippines to amend certain provisions of R.A. 7227, wherein it reasserted its
position embodied in Pambayan Kapasyahan Blg. 08 and Blg. 12, Serye ng taong
1992, (Attached and marked as Annex "A:) which tackled the same issues raised by
the petitioners particularly items a), b), c), e), and g).

3. Item d) is already acted upon by BCDA Chairman Arsenio Bartolome III in its letter
to His Excellency President Fidel V. Ramos, dated May 7, 1993 (Attached and
marked as Annex "B") with clarifying letter from BCDA Vice-Chairman Rogelio L.
Singson regarding lands on Mabayo and Minanga dated June 3, 1993 that only lands
inside the perimeter fence are envisioned to be part of SBMA.

4. Item f), President Ramos in his marginal note over the letter request of Morong,
Bataan Mayor Bienvenido L. Vicedo, the Sangguniang Bayan and Congressman
Payumo, when the Resolution of Concurrence to SBMA was submitted last April 6,
1993, order the priority implementation of completion of Morong-Dinalupihan (Tasik-
Road) Project, including the Morong-Poblacion-Mabayo Road to DPWH. (Attached
and marked as Annex "C").

Based on the foregoing facts, the Sangguniang Bayan of Morong had

accommodated the clamor of the petitioners in accordance with its limited powers
over the issues. However, the Sangguniang Bayan of Morong cannot afford to wait
for amendments by Congress of R.A. 7227 that will perhaps drag for several months
or years, thereby delaying the development of Morong, Bataan.
 Henceforth, we respectfully reiterate our request to deny the petition for a local
initiative and/or referendum because the exercise will just promote divisiveness,
counter productive and futility.

Thank you and more power.

Very truly yours,

(SGD.) EDILBERTO M. DE LEON

Mun. Vice Mayor/Presiding Officer

In its session of July 6, 1993, the COMELEC en banc resolved to deny the petition for local
initiative on the ground that its subject is "merely a resolution (pambayang kapasyahan) and
not an ordinance." 6 On July 13, 1993, the COMELEC en banc further resolved to direct
Provincial Election Supervisor, Atty. Benjamin N. Casiano, to hold action on the
authentication of signatures being gathered by petitioners. 7

These COMELEC resolutions are sought to be set aside in the petition at bench. The petition makes
the following submissions:

5. This is a petition for certiorari and mandamus.

5.01 For certiorari, conformably to Sec. 7, Art. IX of the Constitution, to set aside
Comelec Resolution Nos. 93-1676 and 93-1623 (Annexes "E" and "H") insofar as it
disallowed the initiation of a local initiative to annul PAMBAYANG KAPASYAHAN
BLG. 10, SERYE 1993 including the gathering and authentication of the required
number of signatures in support thereof.

5.01.1 As an administrative agency, respondent Comelec is bound to

observe due process in the conduct of its proceedings. Here, the
subject resolutions, Annexes "E" and "H", were issued ex parte and
without affording petitioners and the other proponents of the initiative
the opportunity to be heard thereon. More importantly, these
resolutions and/or directives were issued with grave abuse of
discretion. A Sangguniang Bayan resolution being an act of the
aforementioned local legislative assembly is undoubtedly a proper
subject of initiative. (Sec. 32, Art. VI, Constitution)

5.02 For mandamus, pursuant to Sec. 3, Rule 65, Rules of Court, to command the
respondent Comelec to schedule forthwith the continuation of the signing of the
petition, and should the required number of signatures be obtained, set a date for the
initiative within forty-five (45) days thereof.

5.02.1 Respondent Comelec's authority in the matter of local initiative

is merely ministerial. It is duty-bound to supervise the gathering of
signatures in support of the petition and to set the date of the initiative
once the required number of signatures are obtained.

If the required number of signatures is obtained, the

Comelec shall then set a date for the initiative during
which the proposition shall be submitted to the
 registered voters in the local government unit
concerned for their approval within sixty (60) days
from the date of certification by the Comelec, as
provided in subsection (g) hereof, in case of provinces
and cities, forty-five (45) days in case of
municipalities, and thirty (30) days in case of
barangays. The initiative shall then be held on the
date set, after which the results thereof shall be
certified and proclaimed by the Comelec. (Sec. 22,
par. (h) R.A. 7160.

Respondent COMELEC opposed the petition. Through the Solicitor General, it contends that
under the Local Government Code of 1991, a resolution cannot be the subject of a local
initiative. The same stance is assumed by the respondent Sangguniang Bayan of Morong. 8

We grant the petition.

The case at bench is of transcendental significance because it involves an issue of first impression
— delineating the extent of the all important original power of the people to legislate. Father Bernas
explains that "in republican systems, there are generally two kinds of legislative power, original and
derivative. Original legislative power is possessed by the sovereign people. Derivative legislative
power is that which has been delegated by the sovereign people to legislative bodies and is
subordinate to the original power of the people."9

Our constitutional odyssey shows that up until 1987, our people have not directly exercised
legislative power, both the constituent power to amend or revise the Constitution or the power to
enact ordinary laws. Section 1, Article VI of the 1935 Constitution delegated legislative power to
Congress, thus "the legislative power shall be vested in a Congress of the Philippines, which shall
consist of a Senate and a House of Representatives." Similarly, section 1, Article VIII of the 1973
Constitution, as amended, provided that "the Legislative power shall be vested in a Batasang
Pambansa." 10

Implicit in the set up was the trust of the people in Congress to enact laws for their benefit. So total
was their trust that the people did not reserve for themselves the same power to make or repeal
laws. The omission was to prove unfortunate. In the 70's and until the EDSA revolution, the
legislature failed the expectations of the people especially when former President Marcos wielded
lawmaking powers under Amendment No. 6 of the 1973 Constitution. Laws which could have bridled
the nation's downslide from democracy to authoritarianism to anarchy never saw the light of day.

In February 1986, the people took a direct hand in the determination of their destiny. They toppled
down the government of former President Marcos in a historic bloodless revolution. The Constitution
was rewritten to embody the lessons of their sad experience. One of the lessons is the folly of
completely surrendering the power to make laws to the legislature. The result, in the perceptive
words of Father Bernas, is that the new Constitution became "less trusting of public officials than the
American Constitution." 11

For the first time in 1987, the system of people's initiative was thus installed in our fundamental law.
To be sure, it was a late awakening. As early as 1898, the state of South Dakota has adopted
initiative and referendum in its constitution 12 and many states have followed suit. 13 In any event, the
framers of our 1987 Constitution realized the value of initiative and referendum as an ultimate
weapon of the people to negate government malfeasance and misfeasance and they put in place an
overarching system. Thus, thru an initiative, the people were given the power to amend the
Constitution itself. Sec. 2 of Art. XVII provides: "Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a petition of at least twelve per centum of the
total number of registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein." Likewise, thru an initiative, the people were also
endowed with the power to enact or reject any act or law by congress or local legislative body.
Sections 1 and 32 of Article VI provide:

Sec. 1. The legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives except to the extent
reserved to the people by the provisions on initiative and referendum.

xxx xxx xxx

Sec. 32. The Congress shall, as early as possible, provide for a system of initiative
and referendum, and the exceptions therefrom, whereby the people can directly
propose and enact laws or approve or reject any act or law or part thereof passed by
the Congress or local legislative body after the registration of a petition therefor
signed by at least ten per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per centum of the
registered voters thereto.

The COMELEC was also empowered to enforce and administer all laws and regulations
relative to the conduct of an initiative and referendum. 14 Worthwhile noting is the scope of
coverage of an initiative or referendum as delineated by section 32 Art. VI of the
Constitution, supra — any act or law passed by Congress or local legislative body.

In due time, Congress respondent to the mandate of the Constitution. It enacted laws to put into
operation the constitutionalized concept of initiative and referendum. On August 4, 1989, it approved
Republic Act No. 6735 entitled "An Act Providing for a System of Initiative and Referendum and
Appropriating Funds Therefor." Liberally borrowed from American laws, 15 R.A. No. 6735, among
others, spelled out the requirements 16 for the exercise of the power of initiative and referendum, the
conduct of national initiative and referendum; 17 procedure of local initiative and referendum; 18 and
their limitations. 19 Then came Republic Act No. 7160, otherwise known as The Local Government
Code of 1991. Chapter 2, Title XI, Book I of the Code governed the conduct of local initiative and
referendum.

In light of this legal backdrop, the essential issue to be resolved in the case at bench is whether
Pambayang Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the
proper subject of an initiative. Respondents take the negative stance as they contend that under the
Local Government Code of 1991 only an ordinance can be the subject of initiative. They rely on
section 120, Chapter 2, Title XI, Book I of the Local Government Code of 1991 which provides:
"Local Initiative Defined. — Local initiative is the legal process whereby the registered voters of a
local government unit may directly propose, enact, or amend any ordinance."

We reject respondents' narrow and literal reading of the above provision for it will collide with the
Constitution and will subvert the intent of the lawmakers in enacting the provisions of the Local
Government Code of 1991 on initiative and referendum.

The Constitution clearly includes not only ordinances but resolutions as appropriate subjects of a
local initiative. Section 32 of Article VI provides in luminous language: "The Congress shall, as early
as possible, provide for a system of initiative and referendum, and the exceptions therefrom,
whereby the people can directly propose and enact laws or approve or reject any act or law or part
thereof passed by the Congress, or local legislative body . . ." An act includes a resolution.
Black 20 defines an act as "an expression of will or purpose . . . it may denote something done . . . as
a legislature, including not merely physical acts, but also decrees, edicts, laws, judgments,resolves,
awards, and determinations . . . ." It is basic that a law should be construed in harmony with and not
in violation of the constitution. 21 In line with this postulate, we held in In Re Guarina that "if there is
doubt or uncertainty as to the meaning of the legislative, if the words or provisions are obscure, or if
the enactment is fairly susceptible of two or more constructions, that interpretation will be adopted
which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose,
to disregard the more usual or apparent import of the language used." 22

The constitutional command to include acts (i.e., resolutions) as appropriate subjects of initiative was
implemented by Congress when it enacted Republic Act No. 6735 entitled "An Act Providing for a
System of Initiative and Referendum and Appropriating Funds Therefor." Thus, its section 3(a)
expressly includes resolutions as subjects of initiatives on local legislations, viz:

Sec. 3. Definition of Terms — For purposes of this Act, the following terms shall
mean;

(a) "Initiative" is the power of the people to propose amendments to

the Constitution or to propose and enact legislations through an
election called for the purpose.

There are three (3) systems of initiative, namely:

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

amendments to the Constitution.

a.2. Initiative on statutes which refers to a petition proposing to enact

a national legislation; and

a.3. Initiative on local legislation which refers to a petition proposing

to enact a regional, provincial, city, municipal, or barangay
law, resolution, or ordinance. (Emphasis ours)

Similarly, its section 16 states: "Limitations Upon Local Legislative Bodies — Any proposition
on ordinance or resolution approved through the system of initiative and referendum as
herein provided shall not be repealed, modified or amended, by the local legislative body
concerned within six (6) months from the date therefrom . . . ." On January 16, 1991, the
COMELEC also promulgated its Resolution No. 2300 entitled "In Re Rules and Regulations
Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum, on
National and Local Laws." It likewise recognized resolutions as proper subjects of initiatives.
Section 5, Article I of its Rules states: "Scope of power of initiative — The power of initiative
may be exercised to amend the Constitution, or to enact a national legislation, a regional,
provincial, city, municipal or barangay law,resolution or ordinance."

There can hardly be any doubt that when Congress enacted Republic Act No. 6735 it intend
resolutions to be proper subjects of local initiatives. The debates confirm this intent. We quote some
of the interpellations when the Conference Committee Report on the disagreeing provisions between
Senate Bill No. 17 and House Bill No. 21505 were being considered in the House of
Representatives, viz:
THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is
recognized.

MR. ROCO. On the Conference Committee Report on the disagreeing provisions

between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers
to the system providing for the initiative ad referendum, fundamentally, Mr. Speaker,
we consolidated the Senate and the House versions, so both versions are totally
intact in the bill. The Senators ironically provided for local initiative and referendum
and the House of Representatives correctly provided for initiative and referendum on
the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.

THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two bills was
that in the Senate version there was a provision for local initiative and referendum,
whereas the House version has none.

MR. ROCO. In fact, the Senate version provided purely for local initiative and
referendum, whereas in the House version, we provided purely for national and
constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two provisions were
incorporated.?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both in
the constitutional amendment and national legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision
of the Constitution whereby it mandates this Congress to enact the enabling law, so
 that we shall have a system which can be done every five years. Is it five years in the
provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987
Constitution, it is every five years. 23

Contrary to the submission of the respondents, the subsequent enactment of the local Government
Code of 1991 which also dealt with local initiative did not change the scope of its coverage. More
specifically, the Code did not limit the coverage of local initiatives to ordinances alone. Section 120,
Chapter 2, Title IX Book I of the Code cited by respondents merely defines the concept of local
initiative as the legal process whereby the registered voters of a local government unit may directly
propose, enact, or amend any ordinance. It does not, however, deal with the subjects or matters that
can be taken up in a local initiative. It is section 124 of the same Code which does. It states:

Sec. 124. Limitations on Local Initiatives. (a) The power of local initiative shall not be
exercised more than once a year.

(b) Initiative shall extend only to subjects or matters which are within the legal powers
of the Sanggunians to enact.

xxx xxx xxx

This provision clearly does not limit the application of local initiatives to ordinances, but to all
"subjects or matters which are within the legal powers of the Sanggunians to enact," which
undoubtedly includes resolutions. This interpretation is supported by Section 125 of the
same Code which provides: "Limitations upon Sanggunians. — Any proposition or ordinance
approved through the system of initiative and referendum as herein provided shall not be
repealed, modified or amended by the sanggunian concerned within six (6) months from the
date of the approval thereof . . . ." Certainly, the inclusion of the word proposition is
inconsistent with respondents' thesis that only ordinances can be the subject of local
initiatives. The principal author of the Local Government Code of 1991, former Senator
Aquilino Pimentel, espouses the same view. In his commentaries on the said law, he
wrote, viz: 24

4. Subject Matter Of Initiative. All sorts of measures may be the subject of direct
initiative for as long as these are within the competence of the Sanggunian to enact.
In California, for example, direct initiatives were proposed to enact a fishing control
bill, to regulate the practice of chiropractors, to levy a special tax to secure a new
library, to grant a franchise to a railroad company, and to prevent discrimination in
the sale of housing and similar bills.

Direct initiative on the local lever may, therefore, cover all kinds of measures
provided that these are within the power of the local Sanggunians to enact, subject of
course to the other requisites enumerated in the Section.

5. Form of Initiative. Regarding the form of the measure, the section speaks only of
"ordinance," although the measure may be contained in a resolution. If the registered
voters can propose ordinances, why are they not allowed to propose resolutions too?
Moreover, the wording of Sec. 125, below, which deals not only with ordinances but
with "any proposition" implies the inclusion of resolutions. The discussion hereunder
will also show support for the conclusion that resolutions may indeed be the subject
of local initiative.
We note that respondents do not give any reason why resolutions should not be the subject of a
local initiative. In truth, the reason lies in the well known distinction between a resolution and an
ordinance — i.e., that a resolution is used whenever the legislature wishes to express an opinion
which is to have only a temporary effect while an ordinance is intended to permanently direct and
control matters applying to persons or things in general. 25 Thus, resolutions are not normally subject
to referendum for it may destroy the efficiency necessary to the successful administration of the
business affairs of a city. 26

In the case at bench, however, it can not be argued that the subject matter of the resolution of the
municipality of Morong merely temporarily affects the people of Morong for it directs a permanent
rule of conduct or government. The inclusion of Morong as part of the Subic Special Economic Zone
has far reaching implications in the governance of its people. This is apparent from a reading of
section 12 of Republic Act No. 7227 entitled "An Act Accelerating the Conversion of Military
Reservations Into Other Productive Uses, Creating the Bases Conversion and Development
Authority For This Purpose, Providing Funds Therefor and For Other Purposes." to wit:

Sec. 12. Subic Special Economic Zone. — Subject to the concurrence by resolution
of the sangguniang panlungsod of the City of Olongapo and the sangguniang
bayan of the Municipalities of Subic, Morong and Hermosa, there is hereby created a
Special Economic and Free-port Zone consisting of the City of Olongapo and the
Municipality of Subic, Province of Zambales, the lands occupied by the Subic Naval
Base and its contiguous extensions as embraced, covered, and defined by the 1947
Military Bases Agreement between the Philippines and the United States of America
as amended, and within the territorial jurisdiction of the Municipalities of Morong and
Hermosa, Province of Bataan, hereinafter referred to a as the Subic Special
Economic Zone whose metes and bounds shall be delineated in a proclamation to be
issued by the President of the Philippines. Within thirty (30) days after the approval of
this Act, each local government unit shall submit its resolution of concurrence to join
the Subic Special Economic Zone to the Office of the President. Thereafter, the
President of the Philippines shall issue a proclamation defining the metes and
bounds of the zone as provided herein.

The abovementioned zone shall be subject to the following policies:

(a) Within the framework and subject to the mandate and limitations of the
Constitution and the pertinent provisions of the Local Government Code, the Subic
Special Economic Zone shall be developed into a self-sustaining, industrial,
commercial, financial and investment center to generate employment opportunities in
and around the zone and to attract and promote productive foreign investments;

(b) The Subic Special Economic Zone shall be operated and managed as a separate
customs territory ensuring free flow or movement of goods and capital within, into a
exported out of the Subic Special Economic Zone, as well as provide incentives such
as tax and duty-free importations of raw material, capital and equipment. However,
exportations or removal of goods from the territory of the Subic Special Economic
Zone to the other parts of the Philippine territory shall be subject to customs duties
and taxes under the Customs and Tariff Code and other relevant tax laws of the
Philippines:

(c) The provision of existing laws, rules and regulations to the contrary
notwithstanding, no taxes, local and national, shall be imposed within the Subic
Special Economic Zone. In lieu of paying taxes, three percent (3%) of the of the
 gross income earned by all businesses and enterprises within the Subic Special
Economic Zone shall be remitted to the National Government one percent (1%) each
to the local government units affected by the declaration of the zone in proportion to
their population area, and other factors. In addition, there is hereby established a
development fund of one percent (1%) of the gross income earned by all businesses
and enterprises within the Subic Special Economic Zone to be utilized for the
development of municipalities outside the City of Olongapo and the Municipality of
Subic, and other municipalities contiguous to the base areas.

In case of conflict between national and local laws with respect to tax exemption
privileges in the Subic Special Economic Zone, the same shall be resolved in favor of
the latter;

(d) No exchange control policy shall be applied and free markets for foreign
exchange, gold, securities and futures shall be allowed and maintained in the Subic
Special Economic Zone;

(e) The Central Bank, through the Monetary Board, shall supervise and regulate the
operations of banks and other financial institutions within the Subic Special Economic
Zone;

(f) Banking and finance shall be liberalized with the establishment of foreign currency
depository units of local commercial banks and offshore banking units of foreign
banks with minimum Central Bank regulation;

(g) Any investor within the Subic Special Economic Zone whose continuing
investment shall not be less than Two hundred fifty thousand dollars ($250,000),
his/her spouse and dependent children under twenty-one (21) years of age, shall be
granted permanent resident status within the Subic Special Economic Zone. They
shall have freedom of ingress and egress to and from the Subic Special Economic
Zone without any need of special authorization from the Bureau of Immigration and
Deportation. The Subic Bay Metropolitan Authority referred to in Section 13 of this
Act may also issue working visas renewable every two (2) years to foreign
executives and other aliens possessing highly-technical skills which no Filipino within
the Subic Special Economic Zone possesses, as certified by the Department of
Labor and Employment. The names of aliens granted permanent residence status
and working visas by the Subic Bay Metropolitan Authority shall be reported to the
Bureau of Immigration and Deportation within thirty (30) days after issuance thereof.

(h) The defense of the zone and the security of its perimeters shall be the
responsibility of the National Government in coordination with the Subic Bay
Metropolitan Authority. The Subic Bay Metropolitan Authority shall provide and
establish its own internal security and fire fighting forces; and

(i) Except as herein provided, the local government units comprising the Subic
Special Economic Zone shall retain their basic autonomy and identity. The cities shall
be governed by their respective charters and the municipalities shall operate and
function in accordance with Republic Act No. 7160, otherwise known as the Local
Government Code of 1991.

In relation thereto, section 14 of the same law provides:

 Sec. 14. Relationship with the Conversion Authority and the Local Government Units.
—

(a) The provisions of existing laws, rules and regulations to the contrary
notwithstanding, the Subic Authority shall exercise administrative powers, rule-
making and disbursement of funds over the Subic Special Economic Zone in
conformity with the oversight function of the Conversion Authority.

(b) In case of conflict between the Subic Authority and the local government units
concerned on matters affecting the Subic Special Economic zone other than defense
and security, the decision of the Subic Authority shall prevail.

Considering the lasting changes that will be wrought in the social, political, and economic
existence of the people of Morong by the inclusion of their municipality in the Subic Special
Economic Zone, it is but logical to hear their voice on the matter via an initiative. It is not
material that the decision of the municipality of Morong for the inclusion came in the form of a
resolution for what matters is its enduring effect on the welfare of the people of Morong.

Finally, it cannot be gained that petitioners were denied due process. They were not furnished a
copy of the letter-petition of Vice Mayor Edilberto M. de Leon to the respondent COMELEC praying
for denial of their petition for a local initiative on Pambayang Kapasyahan Blg. 10, Serye 1993.
Worse, respondent COMELEC granted the petition without affording petitioners any fair opportunity
to oppose it. This procedural lapse is fatal for at stake is not an ordinary right but the sanctity of the
sovereignty of the people, their original power to legislate through the process of initiative. Ours is
the duty to listen and the obligation to obey the voice of the people. It could well be the only force
that could foil the mushrooming abuses in government.

IN VIEW WHEREOF, the petition is GRANTED and COMELEC Resolution 93-1623 dated July 6,
1993 and Resolution 93-1676 dated July 13, 1993 are ANNULLED and SET ASIDE. No costs.
G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED

VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.

x--------------------------------------------------------x

ALTERNATIVE LAW GROUPS, INC., Intervenor.

x ------------------------------------------------------ x

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,

BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.

x------------------------------------------------------ x

ATTY. PETE QUIRINO QUADRA, Intervenor.

x--------------------------------------------------------x

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA

represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by
its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas,
MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA
represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson
Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and
Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR.
REGINALD PAMUGAS of Health Action for Human Rights,Intervenors.

x--------------------------------------------------------x

LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-
BARAQUEL,Intervenors.

x--------------------------------------------------------x

ARTURO M. DE CASTRO, Intervenor.

x ------------------------------------------------------- x

TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.

x---------------------------------------------------------x

LUWALHATI RICASA ANTONINO, Intervenor.

x ------------------------------------------------------- x

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS

C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.

x ------------------------------------------------------- x

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.

x -------------------------------------------------------- x

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.

VICTORINO F. BALAIS, Intervenors.

x -------------------------------------------------------- x

SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR,

JR., Intervenor.

x ------------------------------------------------------- x

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

x ------------------------------------------------------- x

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
SALVADOR, and RANDALL TABAYOYONG, Intervenors.

x -------------------------------------------------------- x

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE

CHAPTERS, Intervenors.

x --------------------------------------------------------x

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R.

OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors.

x -----------------------------------------------------x

JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.

x -----------------------------------------------------x

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.

DECISION

CARPIO, J.:

The Case

These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on
Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution.

Antecedent Facts

On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B.
Aumentado ("Lambino Group"), with other groups1 and individuals, commenced gathering signatures
for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group
filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under
Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act
("RA 6735").

The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at
least twelve per centum (12%) of all registered voters, with each legislative district represented by at
least three per centum (3%) of its registered voters. The Lambino Group also claimed that
COMELEC election registrars had verified the signatures of the 6.3 million individuals.

The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of
Article VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by
adding Article XVIII entitled "Transitory Provisions."6 These proposed changes will shift the present
Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino
Group prayed that after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987

CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
FROM ONE SYSTEM TO THE OTHER?

On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating
modifications in the proposed Article XVIII (Transitory Provisions) of their initiative.7

The Ruling of the COMELEC

On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino
Group's petition for lack of an enabling law governing initiative petitions to amend the Constitution.
The COMELEC invoked this Court's ruling in Santiago v. Commission on Elections8 declaring RA
6735 inadequate to implement the initiative clause on proposals to amend the Constitution.9

In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and
mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC
to give due course to their initiative petition. The Lambino Group contends that the COMELEC
committed grave abuse of discretion in denying due course to their petition since Santiago is not a
binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties to
that case, and their petition deserves cognizance as an expression of the "will of the sovereign
people."

In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC
Commissioners to show cause why they should not be cited in contempt for the COMELEC's
verification of signatures and for "entertaining" the Lambino Group's petition despite the permanent
injunction in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention.

In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the
petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor General
proposed that the Court treat RA 6735 and its implementing rules "as temporary devises to
implement the system of initiative."

Various groups and individuals sought intervention, filing pleadings supporting or opposing the
Lambino Group's petition. The supporting intervenors10 uniformly hold the view that the COMELEC
committed grave abuse of discretion in relying on Santiago. On the other hand, the opposing
intervenors11 hold the contrary view and maintain that Santiago is a binding precedent. The
opposing intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the
validity of the signature gathering and verification process; (3) the Lambino Group's compliance with
the minimum requirement for the percentage of voters supporting an initiative petition under Section
2, Article XVII of the 1987 Constitution;12 (4) the nature of the proposed changes as revisions and not
mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the
Lambino Group's compliance with the requirement in Section 10(a) of RA 6735 limiting initiative
petitions to only one subject.

The Court heard the parties and intervenors in oral arguments on 26 September 2006. After
receiving the parties' memoranda, the Court considered the case submitted for resolution.

The Issues

The petitions raise the following issues:

1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the
Constitution on amendments to the Constitution through a people's initiative;

2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete,
inadequate or wanting in essential terms and conditions" to implement the initiative clause on
proposals to amend the Constitution; and

3. Whether the COMELEC committed grave abuse of discretion in denying due course to the
Lambino Group's petition.
 The Ruling of the Court

There is no merit to the petition.

The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present
petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the
basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse
of discretion is attributable to the Commision on Elections.

1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on
Direct Proposal by the People

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a
people's initiative to propose amendments to the Constitution. This section states:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters of which every legislative district must be represented by at least three per
centum of the registered voters therein. x x x x (Emphasis supplied)

The deliberations of the Constitutional Commission vividly explain the meaning of an amendment
"directly proposed by the people through initiative upon a petition," thus:

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready
to be shown to the people when they are asked to sign?

MR. SUAREZ: That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?

MR. SUAREZ: The people themselves, Madam President.

MR. RODRIGO: No, because before they sign there is already a draft shown to
them and they are asked whether or not they want to propose this constitutional
amendment.

MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)

Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional
amendment" should be "ready and shown" to the people "before" they sign such proposal. The
framers plainly stated that "before they sign there is already a draft shown to them." The framers
also "envisioned" that the people should sign on the proposal itself because the proponents must
"prepare that proposal and pass it around for signature."

The essence of amendments "directly proposed by the people through initiative upon a
petition" is that the entire proposal on its face is a petition by the people. This means two
essential elements must be present. First, the people must author and thus sign the entire proposal.
No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the
proposal must be embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is first
shown to the people who express their assent by signing such complete proposal in a
petition. Thus, an amendment is "directly proposed by the people through initiative upon a
petition" only if the people sign on a petition that contains the full text of the proposed
amendments.

The full text of the proposed amendments may be either written on the face of the petition, or
attached to it. If so attached, the petition must state the fact of such attachment. This is an
assurance that every one of the several millions of signatories to the petition had seen the full text of
the proposed amendments before signing. Otherwise, it is physically impossible, given the time
constraint, to prove that every one of the millions of signatories had seen the full text of the proposed
amendments before signing.

The framers of the Constitution directly borrowed14 the concept of people's initiative from the United
States where various State constitutions incorporate an initiative clause. In almost all States15 which
allow initiative petitions, the unbending requirement is that the people must first see the full text
of the proposed amendments before they sign to signify their assent, and that the people
must sign on an initiative petition that contains the full text of the proposed amendments.16

The rationale for this requirement has been repeatedly explained in several decisions of various
courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts,
affirmed by the First Circuit Court of Appeals, declared:

[A] signature requirement would be meaningless if the person supplying the

signature has not first seen what it is that he or she is signing. Further, and more
importantly, loose interpretation of the subscription requirement can pose a significant
potential for fraud. A person permitted to describe orally the contents of an initiative petition
to a potential signer, without the signer having actually examined the petition, could easily
mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting,
portions of the petition that might not be to the signer's liking. This danger seems
particularly acute when, in this case, the person giving the description is the drafter of
the petition, who obviously has a vested interest in seeing that it gets the requisite
signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied)

Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:

The purposes of "full text" provisions that apply to amendments by initiative commonly are
described in similar terms. x x x (The purpose of the full text requirement is to provide
sufficient information so that registered voters can intelligently evaluate whether to
sign the initiative petition."); x x x (publication of full text of amended constitutional
provision required because it is "essential for the elector to have x x x the section which is
proposed to be added to or subtracted from. If he is to vote intelligently, he must have this
knowledge. Otherwise in many instances he would be required to vote in the dark.")
(Emphasis supplied)

Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of
that which is proposed" and failure to do so is "deceptive and misleading" which renders the
initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the
full text of the proposed amendments. However, the deliberations of the framers of our Constitution
clearly show that the framers intended to adopt the relevant American jurisprudence on people's
initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the
framers intended that the people must first see the full text of the proposed amendments
before they sign, and that the people must sign on a petition containing such full text. Indeed,
Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group
invokes as valid, requires that the people must sign the "petition x x x as signatories."

The proponents of the initiative secure the signatures from the people. The proponents secure the
signatures in their private capacity and not as public officials. The proponents are not disinterested
parties who can impartially explain the advantages and disadvantages of the proposed amendments
to the people. The proponents present favorably their proposal to the people and do not present the
arguments against their proposal. The proponents, or their supporters, often pay those who gather
the signatures.

Thus, there is no presumption that the proponents observed the constitutional requirements in
gathering the signatures. The proponents bear the burden of proving that they complied with the
constitutional requirements in gathering the signatures - that the petition contained, or
incorporated by attachment, the full text of the proposed amendments.

The Lambino Group did not attach to their present petition with this Court a copy of the paper that
the people signed as their initiative petition. The Lambino Group submitted to this Court a copy of
a signature sheet20 after the oral arguments of 26 September 2006 when they filed their
Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments
was the signature sheet attached21 to the opposition in intervention filed on 7 September 2006 by
intervenor Atty. Pete Quirino-Quadra.

The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the
Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full:

Province: City/Municipality: No. of

Legislative District: Barangay:
Verified

Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF
GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY
IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR
THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"

I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which
shall form part of the petition for initiative to amend the Constitution signifies my support for the filing
thereof.

Precinct Name Address Birthdate Signature Verification

Number
MM/DD/YY
 Last Name, First
Name, M.I.
1
2
3
4
5
6
7
8
9
10
_________________ _________________ __________________
Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed
changes in the signature sheet. Neither does the signature sheet state that the text of the
proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral
arguments before this Court on 26 September 2006.

The signature sheet merely asks a question whether the people approve a shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system of government. The signature sheet does not
show to the people the draft of the proposed changes before they are asked to sign the
signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution
envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution.

Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to
August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of the
Lambino Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When
asked if his group also circulated the draft of their amended petition filed on 30 August 2006 with the
COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed
his answer and stated that what his group circulated was the draft of the 30 August 2006 amended
petition, not the draft of the 25 August 2006 petition.

The Lambino Group would have this Court believe that they prepared the draft of the 30 August
2006 amended petition almost seven months earlier in February 2006 when they started
gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August
2006 petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states
as follows:

I have caused the preparation of the foregoing [Amended] Petition in my personal capacity
as a registered voter, for and on behalf of the Union of Local Authorities of the
Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition.
However, the "Official Website of the Union of Local Authorities of the Philippines"22 has posted the
full text of Resolution No. 2006-02, which provides:
 RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE

COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION

WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to
adopt a common stand on the approach to support the proposals of the People's
Consultative Commission on Charter Change;

WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint
Declaration for Constitutional Reforms signed by the members of the ULAP and the majority
coalition of the House of Representatives in Manila Hotel sometime in October 2005;

WHEREAS, the People's Consultative Commission on Charter Change created by Her

Excellency to recommend amendments to the 1987 Constitution has submitted its final report
sometime in December 2005;

WHEREAS, the ULAP is mindful of the current political developments in Congress which
militates against the use of the expeditious form of amending the 1987 Constitution;

WHEREAS, subject to the ratification of its institutional members and the failure of Congress
to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to
pursue the constitutional reform agenda through People's Initiative and Referendum without
prejudice to other pragmatic means to pursue the same;

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE

MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES
(ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;

DONE, during the ULAP National Executive Board special meeting held on 14 January 2006
at the Century Park Hotel, Manila.23 (Underscoring supplied)

ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August
2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution
No. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter
Change through people's initiative and referendum as a mode of amending the 1987 Constitution."
The proposals of the Consultative Commission24 are vastly different from the proposed changes of
the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the
COMELEC.

For example, the proposed revisions of the Consultative Commission affect all provisions of the
existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions
have profound impact on the Judiciary and the National Patrimony provisions of the existing
Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino
Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution,
including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the
filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC.
However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group
caused the circulation of the draft petition, together with the signature sheets, six months before the
filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on
the Lambino Group's claim that they circulated the draft petition together with the signature
sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the
Lambino Group's proposed changes.

In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group
declared:

After the Petition was filed, Petitioners belatedly realized that the proposed amendments
alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of
Section 5 of the Transitory Provisions were inaccurately stated and failed to correctly reflect
their proposed amendments.

The Lambino Group did not allege that they were amending the petition because the amended
petition was what they had shown to the people during the February to August 2006 signature-
gathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 "inaccurately
stated and failed to correctly reflect their proposed amendments."

The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended
petition with the COMELEC that they circulated printed copies of the draft petition together with the
signature sheets. Likewise, the Lambino Group did not allege in their present petition before this
Court that they circulated printed copies of the draft petition together with the signature sheets. The
signature sheets do not also contain any indication that the draft petition is attached to, or circulated
with, the signature sheets.

It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first
claimed that they circulated the "petition for initiative filed with the COMELEC," thus:

[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer
who did not read the measure attached to a referendum petition cannot question his
signature on the ground that he did not understand the nature of the act." [82 C.J.S.
S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters
who signed the signature sheets circulated together with the petition for initiative filed
with the COMELEC below, are presumed to have understood the proposition contained in
the petition. (Emphasis supplied)

The Lambino Group's statement that they circulated to the people "the petition for initiative filed
with the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the
Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that
the signature sheets did not contain the text of the proposed changes. In their Consolidated Reply,
the Lambino Group alleged that they circulated "the petition for initiative" but failed to mention
the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments
that what they circulated was the draft of the amended petition of 30 August 2006.

The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not
read the measure attached to a referendum petition cannot question his signature on the ground
that he did not understand the nature of the act." The Lambino Group quotes an authority that cites a
proposed change attached to the petition signed by the people. Even the authority the Lambino
Group quotes requires that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the petition itself.

Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated
with, or attached to, the initiative petition signed by the people. In the present initiative, the Lambino
Group's proposed changes were not incorporated with, or attached to, the signature sheets. The
Lambino Group's citation of Corpus Juris Secundumpulls the rug from under their feet.

It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to
August 2006 during the signature-gathering period, the draft of the petition or amended petition they
filed later with the COMELEC. The Lambino Group are less than candid with this Court in their
belated claim that they printed and circulated, together with the signature sheets, the petition or
amended petition. Nevertheless, even assuming the Lambino Group circulated the amended
petition during the signature-gathering period, the Lambino Group admitted circulating
only very limited copies of the petition.

During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000
copies of the draft petition they filed more than six months later with the COMELEC. Atty.
Lambino added that he also asked other supporters to print additional copies of the draft petition but
he could not state with certainty how many additional copies the other supporters printed. Atty.
Lambino could only assure this Court of the printing of 100,000 copies because he himself
caused the printing of these 100,000 copies.

Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group
expressly admits that "petitioner Lambino initiated the printing and reproduction of 100,000
copies of the petition for initiative x x x."25 This admission binds the Lambino Group and
establishes beyond any doubt that the Lambino Group failed to show the full text of the
proposed changes to the great majority of the people who signed the signature sheets.

Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one
copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and
company attached one copy of the petition to each signature sheet, only 100,000 signature sheets
could have circulated with the petition. Each signature sheet contains space for ten signatures.
Assuming ten people signed each of these 100,000 signature sheets with the attached petition, the
maximum number of people who saw the petition before they signed the signature sheets would not
exceed 1,000,000.

With only 100,000 printed copies of the petition, it would be physically impossible for all or a great
majority of the 6.3 million signatories to have seen the petition before they signed the signature
sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3
million signatories the full text of the proposed changes. If ever, not more than one million
signatories saw the petition before they signed the signature sheets.

In any event, the Lambino Group's signature sheets do not contain the full text of the proposed
changes, either on the face of the signature sheets, or as attachment with an indication in the
signature sheet of such attachment. Petitioner Atty. Lambino admitted this during the oral
arguments, and this admission binds the Lambino Group. This fact is also obvious from a
mere reading of the signature sheet. This omission is fatal. The failure to so include the text of
the proposed changes in the signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly proposed by the people through
initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative
clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the
full text of the proposed changes before signing. They could not have known the nature and effect of
the proposed changes, among which are:

1. The term limits on members of the legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26

2. The interim Parliament can continue to function indefinitely until its members, who are
almost all the present members of Congress, decide to call for new parliamentary elections.
Thus, the members of the interim Parliament will determine the expiration of their own
term of office; 27

3. Within 45 days from the ratification of the proposed changes, the interim Parliament
shall convene to propose further amendments or revisions to the Constitution.28

These three specific amendments are not stated or even indicated in the Lambino Group's signature
sheets. The people who signed the signature sheets had no idea that they were proposing these
amendments. These three proposed changes are highly controversial. The people could not have
inferred or divined these proposed changes merely from a reading or rereading of the contents of the
signature sheets.

During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the
people during the signature-gathering that the elections for the regular Parliament would be
held during the 2007 local elections if the proposed changes were ratified before the 2007 local
elections. However, the text of the proposed changes belies this.

The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition,
states:

Section 5(2). The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of
all local government officials. x x x x (Emphasis supplied)

Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously
with the 2007 local elections. This section merely requires that the elections for the regular
Parliament shall be held simultaneously with the local elections without specifying the year.

Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have
easily written the word "next" before the phrase "election of all local government officials." This would
have insured that the elections for the regular Parliament would be held in the next local elections
following the ratification of the proposed changes. However, the absence of the word "next" allows
the interim Parliament to schedule the elections for the regular Parliament simultaneously
with any future local elections.

Thus, the members of the interim Parliament will decide the expiration of their own term of office.
This allows incumbent members of the House of Representatives to hold office beyond their current
three-year term of office, and possibly even beyond the five-year term of office of regular members
of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his
group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that contains the full
text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the
6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group
because the signature sheets did not contain the full text of the proposed changes. The result is
a grand deception on the 6.3 million signatories who were led to believe that the proposed changes
would require the holding in 2007 of elections for the regular Parliament simultaneously with the
local elections.

The Lambino Group's initiative springs another surprise on the people who signed the signature
sheets. The proposed changes mandate the interim Parliament to make further amendments or
revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions,
provides:

Section 4(4). Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court
and the people should simply ignore it. Far from being a surplusage, this provision invalidates the
Lambino Group's initiative.

Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling -
when the initiative petition incorporates an unrelated subject matter in the same petition. This puts
the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing
them to sign a petition that effectively contains two propositions, one of which they may find
unacceptable.

Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not
only the unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida
declared:

Combining multiple propositions into one proposal constitutes "logrolling," which, if

our judicial responsibility is to mean anything, we cannot permit. The very broadness of
the proposed amendment amounts to logrolling because the electorate cannot know what it
is voting on - the amendment's proponents' simplistic explanation reveals only the tip of the
iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment
being voted on. x x x x The ballot language in the instant case fails to do that. The very
broadness of the proposal makes it impossible to state what it will affect and effect and
violates the requirement that proposed amendments embrace only one subject. (Emphasis
supplied)

Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme
Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling:

Whenever a bill becomes law through the initiative process, all of the problems that the single-
subject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the
deliberate intermingling of issues to increase the likelihood of an initiative's passage, and there is a
greater opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative
process. The drafters of an initiative operate independently of any structured or supervised process.
They often emphasize particular provisions of their proposition, while remaining silent on other (more
complex or less appealing) provisions, when communicating to the public. x x x Indeed, initiative
promoters typically use simplistic advertising to present their initiative to potential petition-
signers and eventual voters. Many voters will never read the full text of the initiative before the
election. More importantly, there is no process for amending or splitting the several provisions in an
initiative proposal. These difficulties clearly distinguish the initiative from the legislative process.
(Emphasis supplied)

Thus, the present initiative appears merely a preliminary step for further amendments or revisions to
be undertaken by the interim Parliament as a constituent assembly. The people who signed the
signature sheets could not have known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose further amendments or revisions to the
Constitution.

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament
to amend or revise again the Constitution within 45 days from ratification of the proposed
changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the
interim Parliament has the discretion whether to amend or revise again the Constitution. With the
proposed Section 4(4), the initiative proponents want the interim Parliament mandated to
immediately amend or revise again the Constitution.

However, the signature sheets do not explain the reason for this rush in amending or revising again
so soon the Constitution. The signature sheets do not also explain what specific amendments or
revisions the initiative proponents want the interim Parliament to make, and why there is a need for
such further amendments or revisions. The people are again left in the dark to fathom the nature
and effect of the proposed changes. Certainly, such an initiative is not "directly proposed by the
people" because the people do not even know the nature and effect of the proposed changes.

There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August
2006. The proposed Section 4(3) of the Transitory Provisions states:

Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament
until noon of the thirtieth day of June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the
interim Parliament does not schedule elections for the regular Parliament by 30 June 2010.
However, there is no counterpart provision for the present members of the House of Representatives
even if their term of office will all end on 30 June 2007, three years earlier than that of half of the
present Senators. Thus, all the present members of the House will remain members of the interim
Parliament after 30 June 2010.

The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister
exercises all the powers of the President. If the interim Parliament does not schedule elections for
the regular Parliament by 30 June 2010, the Prime Minister will come only from the present
members of the House of Representatives to the exclusion of the present Senators.

The signature sheets do not explain this discrimination against the Senators. The 6.3 million people
who signed the signature sheets could not have known that their signatures would be used
to discriminate against the Senators. They could not have known that their signatures would
be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to
members of the existing House of Representatives.
An initiative that gathers signatures from the people without first showing to the people the full text
of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the
people. That is why the Constitution requires that an initiative must be "directly proposed by the
people x x x in a petition" - meaning that the people must sign on a petition that contains the full
text of the proposed amendments. On so vital an issue as amending the nation's fundamental law,
the writing of the text of the proposed amendments cannot be hidden from the people under a
general or special power of attorney to unnamed, faceless, and unelected individuals.

The Constitution entrusts to the people the power to directly propose amendments to the
Constitution. This Court trusts the wisdom of the people even if the members of this Court do not
personally know the people who sign the petition. However, this trust emanates from a
fundamental assumption: the full text of the proposed amendment is first shown to the
people before they sign the petition, not after they have signed the petition.

In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to
comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be
"directly proposed by the people through initiative upon a petition."

2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision
through Initiatives

A people's initiative to change the Constitution applies only to an amendment of the Constitution and
not to its revision. In contrast, Congress or a constitutional convention can propose both
amendments and revisions to the Constitution. Article XVII of the Constitution provides:

ARTICLE XVII
AMENDMENTS OR REVISIONS

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members, or

(2) A constitutional convention.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative x x x. (Emphasis supplied)

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode
is through Congress upon three-fourths vote of all its Members. The second mode is through a
constitutional convention. The third mode is through a people's initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or
revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode,
applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the
following deliberations of the Constitutional Commission:

MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete Committee Report
No. 7 which embodies the proposed provision governing the matter of initiative. This is now
 covered by Section 2 of the complete committee report. With the permission of the Members,
may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.

This completes the blanks appearing in the original Committee Report No. 7. This proposal
was suggested on the theory that this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee members felt that
this system of initiative should be limited to amendments to the Constitution and
should not extend to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or Revision. x x x x

xxxx

MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate
section in the Article on Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a self-executing provision?

MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process
of initiative is limited to the matter of amendment and should not expand into a
revision which contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.

MS. AQUINO: In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas, the process of initiation to amend, which is given to the public, would only
apply to amendments?

MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.

MS. AQUINO: I thank the sponsor; and thank you, Madam President.

xxxx

MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on

line 1 refers to "amendments." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision."

MR. MAAMBONG: Thank you.31 (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear
distinction between "amendment" and "revision" of the Constitution. The framers intended, and
wrote, that only Congress or a constitutional convention may propose revisions to the Constitution.
The framers intended, and wrote, that a people's initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly withhold from the people the
power to propose revisions to the Constitution, the people cannot propose revisions even as they
are empowered to propose amendments.

This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden
v. Jordan,32the Supreme Court of California ruled:

The initiative power reserved by the people by amendment to the Constitution x x x

applies only to the proposing and the adopting or rejecting of 'laws and amendments
to the Constitution' and does not purport to extend to a constitutional revision. x x x x
It is thus clear that a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a convention called for that
purpose as outlined hereinabove. Consequently if the scope of the proposed initiative
measure (hereinafter termed 'the measure') now before us is so broad that if such measure
became law a substantial revision of our present state Constitution would be effected, then
the measure may not properly be submitted to the electorate until and unless it is first agreed
upon by a constitutional convention, and the writ sought by petitioner should issue. x x x x
(Emphasis supplied)

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33

It is well established that when a constitution specifies the manner in which it may be
amended or revised, it can be altered by those who favor amendments, revision, or other
change only through the use of one of the specified means. The constitution itself recognizes
that there is a difference between an amendment and a revision; and it is obvious from an
examination of the measure here in question that it is not an amendment as that term is
generally understood and as it is used in Article IV, Section 1. The document appears to be
based in large part on the revision of the constitution drafted by the 'Commission for
Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to
the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority
vote of both houses required by Article XVII, Section 2, and hence failed of adoption, x x x.

While differing from that document in material respects, the measure sponsored by the
plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x x.

To call it an amendment is a misnomer.

Whether it be a revision or a new constitution, it is not such a measure as can be submitted

to the people through the initiative. If a revision, it is subject to the requirements of Article
XVII, Section 2(1); if a new constitution, it can only be proposed at a convention called in the
manner provided in Article XVII, Section 1. x x x x

Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments. There
can be no deviation from the constitutionally prescribed modes of revising the Constitution. A
popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the
specific modes prescribed in the Constitution itself.

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34

 It is a fundamental principle that a constitution can only be revised or amended in the
manner prescribed by the instrument itself, and that any attempt to revise a
constitution in a manner other than the one provided in the instrument is almost
invariably treated as extra-constitutional and revolutionary. x x x x "While it is
universally conceded that the people are sovereign and that they have power to adopt a
constitution and to change their own work at will, they must, in doing so, act in an orderly
manner and according to the settled principles of constitutional law. And where the people, in
adopting a constitution, have prescribed the method by which the people may alter or amend
it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is
unconstitutional." x x x x (Emphasis supplied)

This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its
solemn oath and duty to insure compliance with the clear command of the Constitution ― that a
people's initiative may only amend, never revise, the Constitution.

The question is, does the Lambino Group's initiative constitute an amendment or revision of the
Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should
be dismissed for being outside the scope of Section 2, Article XVII of the Constitution.

Courts have long recognized the distinction between an amendment and a revision of a constitution.
One of the earliest cases that recognized the distinction described the fundamental difference in this
manner:

[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and
the provisions contained therein for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or change within the lines of
the original instrument as will effect an improvement, or better carry out the purpose for
which it was framed.35 (Emphasis supplied)

Revision broadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances. There is also revision if the
change alters the substantial entirety of the constitution, as when the change affects
substantial provisions of the constitution. On the other hand, amendment broadly refers to a
change that adds, reduces, or deletes without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while amendment generally affects only the
specific provision being amended.

In California where the initiative clause allows amendments but not revisions to the constitution just
like in our Constitution, courts have developed a two-part test: the quantitative test and the
qualitative test. The quantitative test asks whether the proposed change is "so extensive in its
provisions as to change directly the 'substantial entirety' of the constitution by the deletion or
alteration of numerous existing provisions."36 The court examines only the number of provisions
affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution.
The main inquiry is whether the change will "accomplish such far reaching changes in the nature of
our basic governmental plan as to amount to a revision."37 Whether there is an alteration in the
structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic
governmental plan" includes "change in its fundamental framework or the fundamental powers of its
Branches."38 A change in the nature of the basic governmental plan also includes changes that
"jeopardize the traditional form of government and the system of check and balances."39

Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not
merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles
- Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in
the entire Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of
government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the three great co-
equal branches of government in the present Constitution are reduced into two. This alters the
separation of powers in the Constitution. A shift from the present Bicameral-Presidential system
to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and
executive branches is a radical change in the structure of government.

The abolition alone of the Office of the President as the locus of Executive Power alters the
separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone
of one chamber of Congress alters the system of checks-and-balances within the legislature and
constitutes a revision of the Constitution.

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a
Unicameral-Parliamentary system, involving the abolition of the Office of the President and the
abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the
face alone of the Lambino Group's proposed changes, it is readily apparent that the changes
will radically alter the framework of government as set forth in the Constitution. Father Joaquin
Bernas, S.J., a leading member of the Constitutional Commission, writes:

An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and
plan contemplates a re-examination of the entire document, or of provisions of the document which
have over-all implications for the entire document, to determine how and to what extent they should
be altered. Thus, for instance a switch from the presidential system to a parliamentary system
would be a revision because of its over-all impact on the entire constitutional structure. So
would a switch from a bicameral system to a unicameral system be because of its effect on
other important provisions of the Constitution.41 (Emphasis supplied)

In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution
to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative
"was defective and unauthorized where [the] proposed amendment would x x x affect several other
provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside
the scope of the initiative clause, ruled as follows:

The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but
provides for a change in the form of the legislative branch of government, which has
been in existence in the United States Congress and in all of the states of the nation, except
one, since the earliest days. It would be difficult to visualize a more revolutionary
change. The concept of a House and a Senate is basic in the American form of
government. It would not only radically change the whole pattern of government in this
 state and tear apart the whole fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.

xxxx

We conclude with the observation that if such proposed amendment were adopted by the
people at the General Election and if the Legislature at its next session should fail to submit
further amendments to revise and clarify the numerous inconsistencies and conflicts which
would result, or if after submission of appropriate amendments the people should refuse to
adopt them, simple chaos would prevail in the government of this State. The same result
would obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a
Supreme Court and Circuit Courts-and there could be other examples too numerous to
detail. These examples point unerringly to the answer.

The purpose of the long and arduous work of the hundreds of men and women and many
sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate
inconsistencies and conflicts and to give the State a workable, accordant, homogenous and
up-to-date document. All of this could disappear very quickly if we were to hold that it could
be amended in the manner proposed in the initiative petition here.43(Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present petition. The Lambino
Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to
merge the executive and legislative departments. The initiative in Adams did not even touch the
executive department.

In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that
would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's
present initiative, no less than 105 provisions of the Constitution would be affected based on
the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's
present initiative seeks far more radical changes in the structure of government than the initiative
in Adams.

The Lambino Group theorizes that the difference between "amendment" and "revision" is only one
of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts
and proposes changes to the Constitution, substantive changes are called "revisions"
because members of the deliberative body work full-time on the changes. However, the same
substantive changes, when proposed through an initiative, are called "amendments" because the
changes are made by ordinary people who do not make an "occupation, profession, or
vocation" out of such endeavor.

Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:

99. With this distinction in mind, we note that the constitutional provisions expressly provide
for both "amendment" and "revision" when it speaks of legislators and constitutional
delegates, while the same provisions expressly provide only for "amendment" when it speaks
of the people. It would seem that the apparent distinction is based on the actual experience
of the people, that on one hand the common people in general are not expected to work full-
time on the matter of correcting the constitution because that is not their occupation,
profession or vocation; while on the other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words "revision"
 and "amendment" pertain only to the process or procedure of coming up with the
corrections, for purposes of interpreting the constitutional provisions.

100. Stated otherwise, the difference between "amendment" and "revision" cannot
reasonably be in the substance or extent of the correction. x x x x (Underlining in the
original; boldfacing supplied)

The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the
same proposed changes that the Lambino Group wrote in the present initiative, the changes would
constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed
changes in the present initiative constitute a revision if Congress or a constitutional
convention had drafted the changes. However, since the Lambino Group as private individuals
drafted the proposed changes, the changes are merely amendments to the Constitution. The
Lambino Group trivializes the serious matter of changing the fundamental law of the land.

The express intent of the framers and the plain language of the Constitution contradict the
Lambino Group's theory. Where the intent of the framers and the language of the Constitution are
clear and plainly stated, courts do not deviate from such categorical intent and language.45 Any
theory espousing a construction contrary to such intent and language deserves scant consideration.
More so, if such theory wreaks havoc by creating inconsistencies in the form of government
established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting
inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any
theory advocating that a proposed change involving a radical structural change in government does
not constitute a revision justly deserves rejection.

The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have
attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of
Oregon rejected this theory, thus:

Mabon argues that Article XVII, section 2, does not apply to changes to the constitution
proposed by initiative. His theory is that Article XVII, section 2 merely provides a
procedure by which the legislature can propose a revision of the constitution, but it
does not affect proposed revisions initiated by the people.

Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the
constitution that cannot be enacted through the initiative process. They assert that the
distinction between amendment and revision is determined by reviewing the scope and
subject matter of the proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure proposes far reaching
changes outside the lines of the original instrument, including profound impacts on existing
fundamental rights and radical restructuring of the government's relationship with a defined
group of citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion
the most basic principles of Oregon constitutional law," the trial court correctly held that it
violated Article XVII, section 2, and cannot appear on the ballot without the prior approval of
the legislature.

We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions
instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a
revision of the constitution may not be accomplished by initiative, because of the provisions
of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed
amendments, the court said:
 "From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative
as a means of amending the Oregon Constitution, but it contains no similar sanction for its
use as a means of revising the constitution." x x x x

It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section
of the constitution which provides the means for constitutional revision and it excludes the
idea that an individual, through the initiative, may place such a measure before the
electorate." x x x x

Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to
constitutional revisions proposed by initiative. (Emphasis supplied)

Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the
framers and the plain language of the Constitution.

We can visualize amendments and revisions as a spectrum, at one end green for amendments and
at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties
arise in determining whether there is an amendment or revision. The present initiative is indisputably
located at the far end of the red spectrum where revision begins. The present initiative seeks a
radical overhaul of the existing separation of powers among the three co-equal departments of
government, requiring far-reaching amendments in several sections and articles of the Constitution.

Where the proposed change applies only to a specific provision of the Constitution without affecting
any other section or article, the change may generally be considered an amendment and not a
revision. For example, a change reducing the voting age from 18 years to 15 years47 is an
amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media
companies from 100 percent to 60 percent is an amendment and not a revision.48 Also, a change
requiring a college degree as an additional qualification for election to the Presidency is an
amendment and not a revision.49

The changes in these examples do not entail any modification of sections or articles of the
Constitution other than the specific provision being amended. These changes do not also affect the
structure of government or the system of checks-and-balances among or within the three branches.
These three examples are located at the far green end of the spectrum, opposite the far red end
where the revision sought by the present petition is located.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change
in a single word of one sentence of the Constitution may be a revision and not an amendment. For
example, the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1,
Article II50 of the Constitution radically overhauls the entire structure of government and the
fundamental ideological basis of the Constitution. Thus, each specific change will have to be
examined case-by-case, depending on how it affects other provisions, as well as how it affects the
structure of government, the carefully crafted system of checks-and-balances, and the underlying
ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution,

a deliberative body with recorded proceedings is best suited to undertake a revision. A revision
requires harmonizing not only several provisions, but also the altered principles with those that
remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent
assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions
allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded
proceedings, to undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:

Section 2. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution
which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform with a unicameral
parliamentary form of government; x x x x (Emphasis supplied)

The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior
law, the later law prevails. This rule also applies to construction of constitutions. However, the
Lambino Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of
construction by stating that in case of such irreconcilable inconsistency, the earlier provision "shall
be amended to conform with a unicameral parliamentary form of government." The effect is to
freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a
future separate constitutional amendment.

Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily
conceded during the oral arguments that the requirement of a future amendment is a "surplusage."
In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later provision
automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as that.

The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is
not between a provision in Article VI of the 1987 Constitution and a provision in the proposed
changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the
"Parliamentary system of government," and the inconsistency shall be resolved in favor of a
"unicameral parliamentary form of government."

Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed
changes refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are
among the few countries with unicameral parliaments? The proposed changes could not possibly
refer to the traditional and well-known parliamentary forms of government ― the British, French,
Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have
all bicameral parliaments. Did the people who signed the signature sheets realize that they were
adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government?

This drives home the point that the people's initiative is not meant for revisions of the Constitution
but only for amendments. A shift from the present Bicameral-Presidential to a Unicameral-
Parliamentary system requires harmonizing several provisions in many articles of the Constitution.
Revision of the Constitution through a people's initiative will only result in gross absurdities in the
Constitution.

In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an
amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2,
Article XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this
Constitution."

3. A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements of Section
2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the
Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to cover the system of
initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the
outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively
ruled that RA 6735 does not comply with the requirements of the Constitution to implement the
initiative clause on amendments to the Constitution.

This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before
the Court can be resolved on some other grounds. Such avoidance is a logical consequence of the
well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case can be
resolved on some other grounds.51

Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on
initiatives to amend the Constitution, this will not change the result here because the present petition
violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative
must first comply with Section 2, Article XVII of the Constitution even before complying with RA
6735.

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for
an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number
of registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign
the "petition x x x as signatories."

The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30
August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and
Atty. Alberto C. Agra signed the petition and amended petition as counsels for "Raul L.
Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming
to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition
and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even
comply with the basic requirement of RA 6735 that the Lambino Group claims as valid.

The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition
embracing more than one (1) subject shall be submitted to the electorate; x x x." The proposed
Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further
amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the
form of government. Since the present initiative embraces more than one subject matter, RA 6735
prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the
Lambino Group's initiative will still fail.

4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino
Group's Initiative

In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this
Court's ruling in Santiago and People's Initiative for Reform, Modernization and Action (PIRMA)
v. COMELEC.52 For following this Court's ruling, no grave abuse of discretion is attributable to the
COMELEC. On this ground alone, the present petition warrants outright dismissal. Thus, this Court
should reiterate its unanimous ruling in PIRMA:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be
attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA
therein, it appearing that it only complied with the dispositions in the Decisions of this Court
in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.
5. Conclusion

The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of
all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising
it in blatant violation of the clearly specified modes of amendment and revision laid down in the
Constitution itself.

To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters,
to be tossed and turned by every dominant political group of the day. If this Court allows today a
cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new
dominant political group that comes will demand its own set of changes in the same cavalier and
unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this
country.

An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total votes
cast53 − approved our Constitution in a national plebiscite held on 11 February 1987. That approval
is the unmistakable voice of the people, the full expression of the people's sovereign will.
That approval included the prescribed modes for amending or revising the Constitution.

No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group,
can change our Constitution contrary to the specific modes that the people, in their sovereign
capacity, prescribed when they ratified the Constitution. The alternative is an extra-constitutional
change, which means subverting the people's sovereign will and discarding the Constitution.
This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution,
this Court is sworn to perform its solemn duty to defend and protect the Constitution, which
embodies the real sovereign will of the people.

Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override
the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise,
the Constitution ― the people's fundamental covenant that provides enduring stability to our society
― becomes easily susceptible to manipulative changes by political groups gathering signatures
through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability.

The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that "ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that
their "people's" initiative is an "unqualified support to the agenda" of the incumbent President to
change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or
"sovereign will" in the present initiative.

This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution,
which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend
and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively
gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the
Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre.

WHEREFORE, we DISMISS the petition in G.R. No. 174153.

SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,
Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr.,
JJ., concur.

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED

VOTERS V. COMMISSION ON ELECTIONS ET AL.

SEPARATE CONCURRING OPINION

PANGANIBAN, CJ.:

Without the rule of law, there can be no lasting prosperity and certainly no
liberty.

Beverley McLachlin 1
Chief Justice of Canada

After a deep reflection on the issues raised and a careful evaluation of the parties' respective
arguments -- both oral and written -- as well as the enlightened and enlightening Opinions submitted
by my esteemed colleagues, I am fully convinced that the present Petition must be dismissed.

I write, however, to show that my present disposition is completely consistent with my previous
Opinions and votes on the two extant Supreme Court cases involving an initiative to change the
Constitution.

In my Separate Opinion in Santiago v. Comelec,2 I opined "that taken together and interpreted
properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), Republic Act 6735 and
Comelec Resolution 2300 provide more than sufficient

__________________

'SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once
every five years thereafter.'

"With all due respect, I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to
relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we
should not thereby preempt any future effort to exercise the right of initiative correctly and
judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a
 ban against its proper use. Indeed, there is a right way to do the right thing at the right time
and for the right reason.

Taken Together and Interpreted Properly,

the Constitution, R.A. 6735 and Comelec Resolution
2300 Are Sufficient to Implement Constitutional Initiatives

"While R.A. 6735 may not be a perfect law, it was — as the majority openly concedes —
intended by the legislature to cover and, I respectfully submit, it contains enough provisions
to effectuate an initiative on the Constitution. I completely agree with the inspired and
inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that
RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate
amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on,
are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay
Metropolitan Authority vs. Commission on Elections, that "provisions for initiative . . . are (to
be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise
by the voters of the rights granted thereby"; and in Garcia vs. Comelec, that any "effort to
trivialize the effectiveness of people's initiatives ought to be rejected."

"No law can completely and absolutely cover all administrative details. In recognition of this,
R.A. 6735 wisely empowered the Commission on Election "to promulgate such rules and
regulations as may be necessary to carry out the purposes of this Act." And pursuant
thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its
very words, was promulgated "to govern the conduct of initiative on the Constitution and
initiative and referendum on national and local laws," not by the incumbent Commission on
Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms.
Alfredo

authority to implement, effectuate and realize our people's power to amend the Constitution."

__________________

E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the
Commission, and thus we cannot ascribe any vile motive unto them, other than an honest,
sincere and exemplary effort to give life to a cherished right of our people.

"The majority argues that while Resolution 2300 is valid in regard to national laws and local
legislations, it is void in reference to constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is the same law, R.A. 6735.

"I respectfully submit that taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), R.A. 6735 and Comelec Resolution 2300 provide
more than sufficient authority to implement, effectuate and realize our people's power to
amend the Constitution.

Petitioner Delfin and the Pedrosa

Spouses Should Not Be Muzzled

"I am glad the majority decided to heed our plea to lift the temporary restraining order issued
by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses
Pedrosa from exercising their right of initiative. In fact, I believe that such restraining order as
 against private respondents should not have been issued, in the first place. While I agree
that the Comelec should be stopped from using public funds and government resources to
help them gather signatures, I firmly believe that this Court has no power to restrain them
from exercising their right of initiative. The right to propose amendments to the Constitution is
really a species of the right of free speech and free assembly. And certainly, it would be
tyrannical and despotic to stop anyone from speaking freely and persuading others to
conform to his/her beliefs. As the eminent Voltaire once said, 'I may disagree with what you
say, but I will defend to the death your right to say it.' After all, freedom is not really for the
thought we agree with, but as Justice Holmes wrote, 'freedom for the thought that we hate.'

Epilogue

"By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
referendum and recall, is a new and treasured feature of the Filipino constitutional system.
All three are institutionalized legacies of the world-admired EDSA people power. Like
elections and plebiscites, they are hallowed expressions of popular sovereignty. They are
sacred democratic rights of our people to be used as

Six months after, in my Separate Opinion in People's Initiative for Reform, Modernization and Action
(PIRMA) v. Comelec,3 I joined the rest of the members of the Court in ruling "by a unanimous vote,
that no grave abuse of discretion could be attributed to the Comelec in dismissing the petition filed
by

__________________

Constitution x x x." While concededly, petitioners in this case were not direct parties
in Santiago, nonetheless the Court's injunction against the Comelec covered ANY petition,
not just the Delfin petition which was the immediate subject of said case. As a dissenter in
Santiago, I believed, and still do, that the majority gravely erred in rendering such a
sweeping injunction, but I cannot fault the Comelec for complying with the ruling even
if it, too, disagreed with said decision's ratio decidendi. Respondent Comelec was
directly enjoined by the highest Court of the land. It had no choice but to obey. Its
obedience cannot constitute grave abuse of discretion. Refusal to act on the PIRMA
petition was the only recourse open to the Comelec. Any other mode of action would have
constituted defiance of the Court and would have been struck down as grave abuse of
discretion and contumacious disregard of this Court's supremacy as the final arbiter of
justiciable controversies.

Second Issue:
Sufficiency of RA 6735

"I repeat my firm legal position that RA 6735 is adequate to cover initiatives on the
Constitution, and that whatever administrative details may have been omitted in said
law are satisfactorily provided by Comelec Resolution 2300. The promulgation of
Resolution 2300 is sanctioned by Section 2, Article IX-C of the Constitution, which vests
upon the Comelec the power to "enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum and recall." The Omnibus
Election Code likewise empowers the electoral body to "promulgate rules and regulations
implementing the provisions of this Code or other laws which the Commission is required to
enforce and administer x x x." Finally and most relevantly, Section 20 of Ra 6735 specifically
authorizes Comelec "to promulgate rules and regulations as may be necessary to carry out
the purposes of this Act."
 "In my dissent in Santiago, I wrote that "there is a right way to do the right thing at the right
time and for the right reason." Let me explain further.

The Right Thing

"A people's initiative is direct democracy in action. It is the right thing that citizens may avail
themselves of to articulate their will. It is a new and treasured feature of the Filipino
constitutional system. Even the majority implicitly conceded its value and worth in our legal
firmament when it implored Congress "not to tarry any longer in complying with the
constitutional mandate to provide for implementation of the right (of initiative) of the people x
x x." Hence, in the en banc case of Subic Bay Metropolitan Authority vs. Comelec, [G.R. No.
125416, September 26, 1996], this Court unanimously held that "(l)ike elections, initiative
and referendum are powerful and valuable modes of expressing popular

PIRMA therein," since the Commission had "only complied" with the Santiago Decision.

__________________

sovereignty. And this Court as a matter of policy and doctrine will exert every effort to
nurture, protect and promote their legitimate exercise."

The Right Way

"From the outset, I have already maintained the view that "taken together and interpreted
properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), RA 6735 and Comelec
Resolution 2300 provide more than sufficient authority to implement, effectuate and realize
our people's power to amend the Constitution." Let me now demonstrate the adequacy of RA
6735 by outlining, in concrete terms, the steps to be taken – the right way – to amend the
Constitution through a people's initiative.

"Pursuant to Section 3(f) of the law, the Comelec shall prescribe the form of the petition
which shall contain the proposition and the required number of signatories. Under Sec. 5(c)
thereof, the petition shall state the following:

'c.1 contents or text of the [provision or provisions] sought to be x x x amended, x x x;

c.2 the proposition [in full text];

c.3 the reason or reasons therefor [fully and clearly explained];

c.4 that it is not one of exceptions provided herein;

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

c.6 an abstract or summary proposition in not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.'

"Section 8(f) of Comelec Resolution 2300 additionally requires that the petition include a
formal designation of the duly authorized representatives of the signatories.
 "Being a constitutional requirement, the number of signatures becomes a condition
precedent to the filing of the petition, and is jurisdictional. Without such requisite signatures,
the Commission shall motu proprio reject the petition.

"Where the initiators have substantially complied with the above requirements, they may
thence file the petition with the Comelec which is tasked to determine the sufficiency thereof
and to verify the signatures on the basis of the registry list of voters, voters' affidavits and
voters' identification cards. In deciding whether the petition is sufficient, the Comelec shall
also determine if the proposition is proper for an initiative, i.e., if it consists of an amendment,
not a revision, of the Constitution. Any decision of the electoral body may be appealed to the
Supreme Court within thirty (30) days from notice.

I added "that my position upholding the adequacy of RA 6735 and the validity of Comelec Resolution
2300 will not ipso

__________________

"Within thirty (30) days from receipt of the petition, and after the determination of its
sufficiency, the Comelec shall publish the same in Filipino and English at least twice in
newspapers of general and local circulation, and set the date of the plebiscite. The conduct
of the plebiscite should not be earlier than sixty (60) days, but not later than ninety (90) days
after certification by the Comelec of the sufficiency of the petition. The proposition, if
approved by a majority of the votes cast in the plebiscite, becomes effective as of the day of
the plebiscite.

"From the foregoing, it should be clear that my position upholding the adequacy of RA 6735
and the validity of Comelec Resolution 2300 will not ipso facto validate the PIRMA petition
and automatically lead to a plebiscite to amend the Constitution. Far from it. Among others,
PIRMA must still satisfactorily hurdle the following searching issues:

1. Does the proposed change – the lifting of the term limits of elective officials -- constitute a
mere amendment and not a revision of the Constitution?

2. Which registry of voters will be used to verify the signatures in the petition? This question
is relevant considering that under RA 8189, the old registry of voters used in the 1995
national elections was voided after the barangay elections on May 12, 1997, while the new
list may be used starting only in the elections of May 1998.

3. Does the clamor for the proposed change in the Constitution really emanate from the
people who signed the petition for initiative? Or it is the beneficiaries of term extension who
are in fact orchestrating such move to advance their own political self-interest?

4. Are the six million signatures genuine and verifiable? Do they really belong to qualified
warm bodies comprising at least 12% of the registered voters nationwide, of which every
legislative district is represented by at least 3% of the registered voters therein?

"I shall expound on the third question in the next section, The Right Reason. Question Nos. 1
and 2 above, while important, are basically legal in character and can be determined by
argumentation and memoranda. However, Question No. 4 involves not only legal issues but
gargantuan hurdles of factual determination. This to my mind is the crucible, the litmus test,
of a people's petition for initiative. If herein petitioners, led by PIRMA, succeed in proving --
not just alleging -- that six million voters of this country indeed want to amend the
 Constitution, what power on earth can stop them? Not this Court, not the Comelec, not even
the President or Congress.

facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution.
Far from it." I stressed that PIRMA must show the following, among others:

__________________

"It took only one million people to stage a peaceful revolution at EDSA, and the very rafters
and foundations of the martial law society trembled, quaked and crumbled. On the other
hand, PIRMA and its co-petitioners are claiming that they have gathered six million
signatures. If, as claimed by many, these six million signatures are fraudulent, then let them
be exposed and damned for all history in a signature-verification process conducted under
our open system of legal advocacy.

"More than anything else, it is the truth that I, as a member of this Court and as a citizen of
this country, would like to seek: Are these six million signatures real? By insisting on an
entirely new doctrine of statutory inadequacy, the majority effectively suppressed the quest
for that truth.

The Right Reason

"As mentioned, the third question that must be answered, even if the adequacy of RA 6735
and the validity of Comelec Resolution 2300 were upheld by the majority is: Does the clamor
for the proposed change to the Constitution really emanate from the people who signed the
petition for initiative? Or is it the beneficiaries of term extension who are in fact orchestrating
such move to advance their own political self-interests? In other words, is PIRMA's exercise
of the right to initiative being done in accordance with our Constitution and our laws? Is such
attempted exercise legitimate?

"In Garcia vs. Commission on Elections, we described initiative, along with referendum, as
the 'ultimate weapon of the people to negate government malfeasance and misfeasance.'
In Subic Bay, we specified that 'initiative is entirely the work of the electorate x x x a process
of lawmaking by the people themselves without the participation and against the wishes of
their elected representatives.' As ponente of Subic Bay, I stand foursquare on this
principle: The right to amend through initiative belongs only to the people – not to the
government and its minions. This principle finds clear support from utterances of many
constitutional commissioners like those quoted below:

"[Initiative is] a reserve power of the sovereign people, when they are dissatisfied with the
National Assembly x x x [and] precisely a fallback position of the people in the event that
they are dissatisfied." -- Commissioner Ople

"[Initiative is] a check on a legislative that is not responsive [and resorted to] only if the
legislature is not as responsive to the vital and urgent needs of people." -- Commissioner
Gascon

(1) The proposed change -- the lifting of term limits of elective officials -- "constitute[s] a mere
amendment and not a revision of the Constitution."

_________________
 "[Initiative is an] extraordinary power given to the people [and] reserved for the people
[which] should not be frivolously resorted to." -- Commissioner Romulo

"Indeed, if the powers-that-be desire to amend the Constitution, or even to revise it, our
Charter itself provides them other ways of doing so, namely, by calling a constitutional
convention or constituting Congress into a constituent assembly. These are officialdom's
weapons. But initiative belongs to the people.

"In the present case, are PIRMA and its co-petitioners legitimate people's organizations or
are they merely fronts for incumbents who want to extend their terms? This is a factual
question which, unfortunately, cannot be judicially answered anymore, because the Supreme
Court majority ruled that the law that implements it, RA 6735, is inadequate or insufficient
insofar as initiatives to the Constitutions are concerned. With such ruling, the majority
effectively abrogated a constitutional right of our people. That is why in my Separate Opinion
in Santiago, I exclaimed that such precipitate action "is equivalent to burning the whole
house to exterminate the rats, and to killing the patient to relieve him of pain." I firmly
maintain that to defeat PIRMA's effort, there is no need to "burn" the constitutional right to
initiative. If PIRMA's exercise is not "legitimate," it can be exposed as such in the ways I
have discussed – short of abrogating the right itself. On the other hand, if PIRMA's position is
proven to be legitimate – if it hurdles the four issues I outlined earlier – by all means, we
should allow and encourage it. But the majority's theory of statutory inadequacy has pre-
empted – unnecessarily and invalidly, in my view – any judicial determination of such
legitimacy or illegitimacy. It has silenced the quest for truth into the interstices of the PIRMA
petition.

The Right Time

"The Constitution itself sets a time limitation on when changes thereto may be proposed.
Section 2 of Article XVII precludes amendments "within five years following [its] ratification x
x x nor oftener than once every five years thereafter." Since its ratification, the 1987
Constitution has never been amended. Hence, the five-year prohibition is now inoperative
and amendments may theoretically be proposed at any time.

"Be that as it may, I believe – given the present circumstances – that there is no more time to
lift term limits to enable incumbents to seek reelection in the May 11, 1998 polls. Between
today and the next national

(2) The "six million signatures are genuine and verifiable"; and they "really belong to qualified warm
bodies comprising at

__________________

elections, less than eight (8) months remain. Santiago, where the single issue of the
sufficiency of RA 6735 was resolved, took this Court three (3) months, and another two (2)
months to decide the motion for reconsideration. The instant case, where the same issue is
also raised by the petitioners, took two months, not counting a possible motion for
reconsideration. These time spans could not be abbreviated any further, because due
process requires that all parties be given sufficient time to file their pleadings.

"Thus, even if the Court were to rule now in favor of the adequacy of RA 6735 – as I believe
it should – and allow the Comelec to act on the PIRMA petition, such eight-month period will
not be enough to tackle the four weighty issues I mentioned earlier, considering that two of
 them involve tedious factual questions. The Comelec's decision on any of these issues can
still be elevated to this Court for review, and reconsiderations on our decisions on each of
those issues may again be sought.

"Comelec's herculean task alone of verifying each of the six million signatures is enormously
time-consuming, considering that any person may question the authenticity of each and
every signature, initially before the election registrar, then before the Comelec on appeal and
finally, before this Court in a separate proceeding. Moreover, the plebiscite itself – assuming
such stage can be reached – may be scheduled only after sixty (60) but not more than ninety
(90) days, from the time the Comelec and this Court, on appeal, finally declare the petition to
be sufficient.

"Meanwhile, under Comelec Resolution 2946, political parties, groups organizations or

coalitions may start selecting their official candidates for President, Vice President and
Senators on November 27, 1997; the period for filing certificates of candidacy is from
January 11 to February 9, 1998; the election period and campaign for national officials start
on February 10, 1998, while the campaign period for other elective officials, on March 17,
1998. This means, by the time PIRMA's proposition is ready – if ever – for submission
directly to the voters at large, it will have been overcome by the elections. Time will simply
run out on PIRMA, if the intention is to lift term limits in time for the 1998 elections.

"That term limits may no longer be lifted prior to the 1998 elections via a people's initiative
does not detract one whit from (1) my firm conviction that RA 6735 is sufficient and adequate
to implement this constitutional right and, more important, (2) my faith in the power of the
people to initiate changes in local and national laws and the Constitution. In fact, I think the
Court can deliberate on these two items even more serenely and wisely now that the
debates will be free from the din and distraction of the 1998 elections. After all, jurisprudence
is not merely for the here and now but, more so, for the hereafter and the morrow. Let me
therefore stress, by way of epilogue, my unbending credo in favor of our people's right to
initiative.

least 12% of the registered voters nationwide, of which every legislative district is represented by at
least 3% of the registered voters therein."

__________________

Epilogue

"I believe in democracy – in our people's natural right to determine our own destiny.

"I believe in the process of initiative as a democratic method of enabling our people to
express their will and chart their history. Initiative is an alternative to bloody revolution,
internal chaos and civil strife. It is an inherent right of the people – as basic as the right to
elect, the right to self-determination and the right to individual liberties. I believe that Filipinos
have the ability and the capacity to rise above themselves, to use this right of initiative wisely
and maturely, and to choose what is best for themselves and their posterity.

"Such beliefs, however, should not be equated with a desire to perpetuate a particular official
or group of officials in power. Far from it. Such perpetuation is anathema to democracy. My
firm conviction that there is an adequate law implementing the constitutional right of initiative
does not ipso facto result in the victory of the PIRMA petition or of any proposed
constitutional change. There are, after all, sufficient safeguards to guarantee the proper
 use of such constitutional right and to forestall its misuse and abuse. First, initiative cannot
be used to revise the Constitution, only to amend it. Second, the petitioners' signatures must
be validated against an existing list of voters and/or voters' identification
cards. Third, initiative is a reverse power of and by the people, not of incumbent officials and
their machinators. Fourth and most important of all, the signatures must be verified as real
and genuine; not concocted, fictitious or fabricated. The only legal way to do this is to enable
the Commission on Elections to conduct a nationwide verification process as mandated by
the Constitution and the law. Such verification, it bears stressing, is subject to review by this
Court.

"There were, by the most generous estimate, only a million people who gathered at EDSA in
1986, and yet they changed the history of our country. PIRMA claims six times that number,
not just from the National Capital Region but from all over the country. Is this claim through
the invention of its novel theory of statutory insufficiency, the Court's majority has stifled the
only legal method of determining whether PIRMA is real or not, whether there is indeed a
popular clamor to lift term limits of elected officials, and whether six million voters want to
initiate amendments to their most basic law. In suppressing a judicial answer to such
questions, the Court may have unwittingly yielded to PIRMA the benefit of the legal
presumption of legality and regularity. In its misplaced zeal to exterminate the rats, it burned
down the whole house. It unceremoniously divested the people of a basic constitutional right.

In both Opinions, I concluded that we must implement "the right thing [initiative] in the right way at
the right time and for the right reason."

In the present case, I steadfastly stand by my foregoing Opinions in Santiago and PIRMA. Tested
against them, the present Petition of Raul Lambino and Erico Aumentado must be
DISMISSED. Unfortunately, the right thing is being rushed in the wrong way and for
the wrong reasons. Let me explain.

No Grave Abuse

of Discretion by Comelec

As in PIRMA, I find no grave abuse of discretion in Comelec's dismissal of the Lambino Petition.
After all, the Commission merely followed the holding in Santiago permanently

____________________

"In the ultimate, the mission of the judiciary is to discover truth and to make it prevail. This
mission is undertaken not only to resolve the vagaries of present events but also to build the
pathways of tomorrow. The sum total of the entire process of adversarial litigation is the
verity of facts and the application of law thereto. By the majority cop-out in this mission of
discovery, our country and our people have been deprived not only of a basic constitutional
right, as earlier noted, but also of the judicial opportunity to verify the truth."

enjoining the poll body "from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly enacted to provide for
the implementation of the system."

Indeed, the Comelec did not violate the Constitution, the laws or any jurisprudence.4 Neither
can whim, caprice, arbitrariness or personal bias be attributed to the Commission.5 Quite the
contrary, it prudently followed this Court's jurisprudence in Santiago and PIRMA. Even assuming
arguendo that Comelec erred in ruling on a very difficult and unsettled question of law, this Court still
cannot attribute grave abuse of discretion to the poll body with respect to that action.6

The present Lambino Petition is in exactly the same situation as that of PIRMA in 1997. The
differences pointed out by Justice Reynato S. Puno are, with due respect, superficial. It is argued
that, unlike the present Lambino Petition, PIRMA did not contain verified signatures. These are
distinctions that do not make a difference. Precisely, Justice Puno is urging a remand, because the
verification issue is "contentious" and remains unproven by petitioners. Clearly, both the
PIRMA and the Lambino Petitions contain unverified signatures. Therefore, they both deserve
the same treatment: DISMISSAL.

Besides, the only reason given in the unanimous Resolution on PIRMA v. Comelec was that the
Commission had "only complied" with this Court's Decision in Santiago, the same reason given by
Comelec in this case. The Separate Opinions in PIRMA gave no other reason. No one argued,
even remotely, that the PIRMA Petition should have been dismissed because the signatures
were unverified.

To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional requirement, the number of
signatures becomes a condition precedent to the filing of the petition, and is jurisdictional.7 Without
those signatures, the Comelec shall motu proprio reject the petition."

So, until and unless Santiago is revisited and changed by this Court or the legal moorings of the
exercise of the right are substantially changed, the Comelec cannot be faulted for acting in
accord with this Court's pronouncements. Respondent Commission has no discretion, under
any guise, to refuse enforcement of any final decision of this Court.8 The refusal of the poll
body to act on the Lambino Petition was its only recourse. Any other mode of action would appear
not only presumptuous, but also contemptuous. It would have constituted defiance of the Court and
would have surely been struck down as grave abuse of discretion and contumacious disregard of the
supremacy of this Court as the final arbiter of justiciable controversies.

Even assuming further that this Court rules, as I believe it should (for the reasons given in my
Opinions in Santiago and PIRMA), that Republic Act 6735 is indeed sufficient to implement an
initiative to amend the Constitution, still, no grave abuse of discretion can be attributed to the
Comelec for merely following prevailing jurisprudence extant at the time it rendered its ruling in
question.

Only Amendments,

Not Revisions

I reiterate that only amendments, not revisions, may be the proper subject of an initiative to
change the Constitution. This principle is crystal clear from even a layperson's reading of the basic
law.9

I submit that changing the system of government from presidential to parliamentary and the form of
the legislature from bicameral to unicameral contemplates an overhaul of the structure of
government. The ponencia has amply demonstrated that the merger of the legislative and the
executive branches under a unicameral-parliamentary system, "[b]y any legal test and under any
jurisdiction," will "radically alter the framework of government as set forth in the Constitution."
Indeed, the proposed changes have an overall implication on the entire Constitution; they effectively
rewrite its most important and basic provisions. The prolixity and complexity of the changes cannot
be categorized, even by semantic generosity, as "amendments."
In addition, may I say that of the three modes of changing the Constitution, revisions (or
amendments) may be proposed only through the first two: by Congress or by a constitutional
convention. Under the third mode -- people's initiative -- only amendments are allowed. Many of the
justices' Opinions have cited the historical, philosophical and jurisprudential bases of their respective
positions. I will not add to the woes of the reader by reiterating them here.

Suffice it to say that, to me, the practical test to differentiate an amendment from a revision is found
in the Constitution itself: a revision may be done only when the proposed change can be
drafted, defined, articulated, discussed and agreed upon after a mature and democratic
debate in a deliberative body like Congress or a Convention. The changes proposed must
necessarily be scrutinized, as their adoption or non-adoption must result from an informed
judgment.

Indeed, the constitutional bodies that drafted the 1935, the 1972 and the 1987 Constitutions had to
spend many months of purposeful discussions, democratic debates and rounds of voting before they
could agree on the wordings covering the philosophy, the underlying principles, and the structure of
government of our Republic.

Verily, even bills creating or changing the administrative structure of local governments take several
weeks or even months of drafting, reading, and debating before Congress can approve them. How
much more when it comes to constitutional changes?

A change in the form of government of our country from presidential-bicameral to parliamentary-

unicameral is monumental. Even the initiative proponents admit this fact. So, why should a revision
be rammed down our people's throats without the benefit of intelligent discussion in a deliberative
assembly?

Added to the constitutional mandate barring revisions is the provision of RA 6735 expressly
prohibiting petitions for initiative from "embracing more than one subject matter."10 The present
initiative covers at least two subjects: (1) the shift from a presidential to a parliamentary form of
government; and (2) the change from a bicameral to a unicameral legislature.11 Thus, even under
Republic Act 6735 -- the law that Justice Puno and I hold to be sufficient and valid -- the Lambino
Petition deserves dismissal.

12 Percent and 3 Percent Thresholds

Not Proven by Petitioners

The litmus test of a people's petition for initiative is its ability to muster the constitutional
requirement that it be supported by at least 12 percent of the registered voters nationwide, of which
at least 3 percent of the registered voters in every legislative district must be represented. As pointed
out by Intervenors One Voice, Inc., et al., however, records show that there was a failure to meet the
minimum percentages required.12

Even Justice Puno concedes that the 12 percent and 3 percent constitutional requirements involve
"contentious facts," which have not been proven by the Lambino Petition. Thus, he is urging a
remand to the Comelec.

But a remand is both imprudent and futile. It is imprudent because the Constitution itself mandates
the said requisites of an initiative petition. In other words, a petition that does not show the
required percentages is fatally defective and must be dismissed, as the Delfin Petition was,
in Santiago.
Furthermore, as the ponencia had discussed extensively, the present Petition is void and
unconstitutional. It points out that the Petition dismally fails to comply with the constitutional
requirement that an initiative must be directly proposed by the people. Specifically, the ponencia has
amply established that petitioners were unable to show that the Lambino Petition contained, or
incorporated by attachment, the full text of the proposed changes.

So, too, a remand is futile. Even if the required percentages are proven before the Commission,
the Petition must still be dismissed for proposing a revision, not an amendment, in gross
violation of the Constitution. At the very least, it proposes more than one subject, in violation of
Republic Act 6735.

Summation

Petitioners plead with this Court to hear the voice of the people because, in the words of Justice
Puno who supports them, the "people's voice is sovereign in a democracy."

I, too, believe in heeding the people's voice. I reiterate my Separate Opinion in PIRMA that
"initiative is a democratic method of enabling our people to express their will and chart their history. x
x x. I believe that Filipinos have the ability and the capacity to rise above themselves, to use this
right of initiative wisely and maturely, and to choose what is best for themselves and their posterity."

This belief will not, however, automatically and blindly result in an initiative to change the
Constitution, because the present Petition violates the following:

· The Constitution (specifically Article XVII, which allows only amendments, not revisions, and
requires definite percentages of verified signatures)

· The law (specifically, Republic Act 6735, which prohibits petitions containing more than one
subject)

· Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the Petition then under
consideration on the ground that, by following the Santiago ruling, the Comelec had not gravely
abused its discretion).

I submit further that a remand of the Lambino Petition is both imprudent and futile. More tellingly, it is
a cop-out, a hand-washing already discredited 2000 years ago. Instead of finger-pointing, I
believe we must confront the issues head on, because the people expect no less from this august
and venerable institution of supreme justice.

Epilogue

At bottom, the issue in this case is simply the Rule of Law.13 Initiative, like referendum and recall,
is a treasured feature of the Filipino constitutional system. It was born out of our world-admired and
often-imitated People Power, but its misuse and abuse must be resolutely rejected. Democracy
must be cherished, but mob rule vanquished.

The Constitution is a sacred social compact, forged between the government and the people,
between each individual and the rest of the citizenry. Through it, the people have solemnly
expressed their will that all of them shall be governed by laws, and their rights limited by agreed-
upon covenants to promote the common good. If we are to uphold the Rule of Law and reject the
rule of the mob, we must faithfully abide by the processes the Constitution has ordained in
order to bring about a peaceful, just and humane society. Assuming arguendo that six million
people allegedly gave their assent to the proposed changes in the Constitution, they are
nevertheless still bound by the social covenant -- the present Constitution -- which was ratified by
a far greater majority almost twenty years ago.14 I do not denigrate the majesty of the sovereign will;
rather, I elevate our society to the loftiest perch, because our government must remain as one of
laws and not of men.

Upon assuming office, each of the justices of the Supreme Court took a solemn oath to uphold the
Constitution. Being the protectors of the fundamental law as the highest expression of the sovereign
will, they must subject to the strictest scrutiny any attempt to change it, lest it be trivialized and
degraded by the assaults of the mob and of ill-conceived designs. The Court must single-
mindedly defend the Constitution from bogus efforts falsely attributed to the sovereign people.

The judiciary may be the weakest branch of government. Nonetheless, when ranged against
incessant voices from the more powerful branches of government, it should never cower in
submission. On the other hand, I daresay that the same weakness of the Court becomes its strength
when it speaks independently through decisions that rightfully uphold the supremacy of the
Constitution and the Rule of Law. The strength of the judiciary lies not in its lack of brute power,
but in its moral courage to perform its constitutional duty at all times against all odds. Its might is in
its being right.15

During the past weeks, media outfits have been ablaze with reports and innuendoes about alleged
carrots offered and sticks drawn by those interested in the outcome of this case.16 There being no
judicial proof of these allegations, I shall not comment on them for the nonce, except to quote the
Good Book, which says, "There is nothing hidden that will not be revealed, and nothing secret that
will not be known and come to light."17

Verily, the Supreme Court is now on the crossroads of history. By its decision, the Court and each of
its members shall be judged by posterity. Ten years, fifty years, a hundred years -- or even a
thousand years -- from now, what the Court did here, and how each justice opined and voted, will
still be talked about, either in shame or in pride. Indeed, the hand-washing of Pontius Pilate, the
abomination of Dred Scott, and the loathing of Javellana still linger and haunt to this day.

Let not this case fall into the same damnation. Rather, let this Court be known throughout the nation
and the world for its independence, integrity, industry and intelligence.

WHEREFORE, I vote to DISMISS the Petition.

ARTEMIO V. PANGANIBAN
Chief Justice

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED

VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, ET AL., Respondents.
G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A. Q. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, JR. and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION

YNARES-SANTIAGO, J.:

I agree with the opinion of our esteemed colleague, Justice Reynato Puno, that the Court's ruling
in Santiago v. COMELEC1 is not a binding precedent. However, it is my position that even
if Santiago were reversed and Republic Act No. 6735 (R.A. 6735) be held as sufficient law for the
purpose of people's initiative to amend the Constitution, the petition for initiative in this case must
nonetheless be dismissed.

There is absolutely no showing here that petitioners complied with R.A. 6735, even as they blindly
invoke the said law to justify their alleged people's initiative. Section 5(b) of R.A. 6735 requires that
"[a] petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%)
of the total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein." On the other hand,
Section 5(c)2 of the same law requires that the petition should state, among others, the
proposition3 or the "contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed." If we were to apply Section 5(c) to an initiative to amend the Constitution, as
petitioners submit, the petition for initiative signed by the required number of voters should
incorporate therein a text of the proposed changes to the Constitution. However, such requirement
was not followed in the case at bar.

During the oral arguments, petitioner Lambino admitted that they printed a mere 100,000 copies of
the text of the proposed changes to the Constitution. According to him, these were subsequently
distributed to their agents all over the country, for attachment to the sheets of paper on which the
signatures were to be affixed. Upon being asked, however, if he in fact knew whether the text was
actually attached to the signature sheets which were distributed for signing, he said that he merely
assumed that they were. In other words, he could not tell the Court for certain whether their
representatives complied with this requirement.

The petition filed with the COMELEC, as well as that which was shown to this Court, indubitably
establish that the full text of the proposed changes was not attached to the signature sheets. All that
the signature sheets contained was the general proposition and abstract, which falls short of the full
text requirement of R.A. 6735.

The necessity of setting forth the text of the proposed constitutional changes in the petition for
initiative to be signed by the people cannot be seriously disputed. To begin with, Article XVII, Section
2 of the Constitution unequivocally states that "[a]mendments to this Constitution may likewise
be directly proposed by the people through initiative upon a petition of at least twelve per
centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein." Evidently, for the people
to propose amendments to the Constitution, they must, in the first instance, know exactly what they
are proposing. It is not enough that they merely possess a general idea of the proposed changes, as
the Constitution speaks of a "direct" proposal by the people.

Although the framers of the Constitution left the matter of implementing the constitutional right of
initiative to Congress, it might be noted that they themselves reasonably assumed that the draft of
the proposed constitutional amendments would be shown to the people during the process of
signature gathering. Thus –

MR. RODRIGO. Section 2 of the complete committee report provides: "upon petition of at
least 10 percent of the registered voters." How will we determine that 10 percent has been
achieved? How will the voters manifest their desire, is it by signature?

MR. SUAREZ. Yes, by signatures.

MR. RODRIGO. Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready to be
shown to the people when they are asked to sign?

MR. SUAREZ. That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before
they sign. Now, who prepares the draft?

MR. SUAREZ: The people themselves, Madam President.4

It may thus be logically assumed that even without Section 5(c) of R.A. 6735, the full text of the
proposed changes must necessarily be stated in or attached to the initiative petition. The signatories
to the petition must be given an opportunity to fully comprehend the meaning and effect of the
proposed changes to enable them to make a free, intelligent and well-informed choice on the matter.

Needless to say, the requirement of setting forth the complete text of the proposed changes in the
petition for initiative is a safeguard against fraud and deception. If the whole text of the proposed
changes is contained in or attached to the petition, intercalations and riders may be duly avoided.
Only then can we be assured that the proposed changes are truly of the people and that the
signatories have been fully apprised of its implications.

If a statutory provision is essential to guard against fraud, corruption or deception in the initiative and
referendum process, such provision must be viewed as an indispensable requirement and failure to
substantially comply therewith is fatal.5 The failure of petitioners in this case to comply with the full
text requirement resultantly rendered their petition for initiative fatally defective.

The petition for initiative is likewise irretrievably infirm because it violates the one subject rule under
Section 10(a) of R.A. 6735:

SEC. 10. Prohibited Measures.— The following cannot be the subject of an initiative or
referendum petition:

(a) No petition embracing more than one subject shall be submitted to the electorate; x x x

The one subject rule, as relating to an initiative to amend the Constitution, has the same object and
purpose as the one subject-one bill rule embodied in Article VI, Section 26(1)6 of the
Constitution.7 To elaborate, the one subject-one bill rule was designed to do away with the practice
of inserting two or more unrelated provisions in one bill, so that those favoring one provision would
be compelled to adopt the others. By this process of log-rolling, the adoption of both provisions could
be accomplished and ensured, when neither, if standing alone, could succeed on its own merits.

As applied to the initiative process, the one subject rule is essentially designed to prevent surprise
and fraud on the electorate. It is meant to safeguard the integrity of the initiative process by ensuring
that no unrelated riders are concealed within the terms of the proposed amendment. This in turn
guarantees that the signatories are fully aware of the nature, scope and purpose of the proposed
amendment.

Petitioners insist that the proposed changes embodied in their petition for initiative relate only to one
subject matter, that is – the shift from presidential to a parliamentary system of government.
According to petitioners, all of the other proposed changes are merely incidental to this main
proposal and are reasonably germane and necessary thereto.8An examination of the text of the
proposed changes reveals, however, that this is not the case.

The proposed changes to the Constitution cover other subjects that are beyond the main proposal
espoused by the petitioners. Apart from a shift from the presidential to a parliamentary form of
government, the proposed changes include the abolition of one House of Congress,9 and the
convening of a constituent assembly to propose additional amendments to the Constitution.10 Also
included within its terms is an omnibus declaration that those constitutional provisions under Articles
VI and VII, which are inconsistent with the unicameral-parliamentary form of government, shall be
deemed amended to conform thereto.

It is not difficult to see that while the proposed changes appear to relate only to a shift in the form of
government, it actually seeks to affect other subjects that are not reasonably germane to the
constitutional alteration that is purportedly sought. For one, a shift to a parliamentary system of
government does not necessarily result in the adoption of a unicameral legislature. A parliamentary
system can exist in many different "hybrid" forms of government, which may or may not embrace
unicameralism.11 In other words, the shift from presidential to parliamentary structure and from a
bicameral to a unicameral legislature is neither the cause nor effect of the other.

I also fail to see the relation of convening a constituent assembly with the proposed change in our
system of government. As a subject matter, the convening of a constituent assembly to amend the
Constitution presents a range of issues that is far removed from the subject of a shift in government.
Besides, the constituent assembly is supposed to convene and propose amendments to the
Constitution after the proposed change in the system of government has already taken place. This
only goes to show that the convening of the constituent assembly is not necessary to effectuate a
change to a parliamentary system of government.

The omnibus statement that all provisions under Articles VI and VII which are inconsistent with a
unicameral-parliamentary system of government shall be deemed amended is equally bothersome.
The statement does not specify what these inconsistencies and amendments may be, such that
everyone is left to guess the provisions that could eventually be affected by the proposed changes.
The subject and scope of these automatic amendments cannot even be spelled out with certainty.
There is thus no reasonable measure of its impact on the other constitutional provisions.

The foregoing proposed changes cannot be the subject of a people's initiative under Section 2,
Article XVII of the Constitution. Taken together, the proposed changes indicate that the intendment
is not simply to effect substantial amendments to the Constitution, but a revision thereof. The
distinction between an amendment and revision was explained by Dean Vicente G. Sinco, as
follows:

"Strictly speaking, the act of revising a constitution involves alterations of different portions of
the entire document. It may result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important provisions. But whatever results
the revision may produce, the factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to determine which one should be
altered or suppressed or whether the whole document should be replaced with an entirely
new one.

The act of amending a constitution, on the other hand, envisages a change of only a few
specific provisions. The intention of an act to amend is not to consider the advisability of
changing the entire constitution or of considering that possibility. The intention rather is to
improve specific parts of the existing constitution or to add to it provisions deemed essential
on account of changed conditions or to suppress portions of it that seem obsolete, or
dangerous, or misleading in their effect."12

The foregoing traditional exposition of the difference between amendment and revision has indeed
guided us throughout our constitutional history. However, the distinction between the two terms is
not, to my mind, as significant in the context of our past constitutions, as it should be now under the
1987 Constitution. The reason for this is apparent. Under our past constitutions, it was Congress
alone, acting either as a constituent assembly or by calling out a constitutional convention, that
exercised authority to either amend or revise the Constitution through the procedures therein
described. Although the distinction between the two terms was theoretically recognized under both
the 1935 and 1973 Constitutions, the need to highlight the difference was not as material because it
was only Congress that could effect constitutional changes by choosing between the two modalities.

However, it is different now under the 1987 Constitution. Apart from providing for the two modes of
either Congress constituting itself as a constituent assembly or calling out for a constitutional
convention, a third mode was introduced for proposing changes to the Constitution. This mode refers
to the people's right to propose amendments to the fundamental law through the filing of a petition
for initiative.

Otherwise stated, our experience of what constitutes amendment or revision under the past
constitutions is not determinative of what the two terms mean now, as related to the exercise of the
right to propose either amendments or revision. The changes introduced to both the Constitutions of
1935 and 1973 could have indeed been deemed an amendment or revision, but the authority for
effecting either would never have been questioned since the same belonged solely to
Congress. In contrast, the 1987 Constitution clearly limits the right of the people to directly propose
constitutional changes to amendments only. We must consequently not be swayed by examples of
constitutional changes effected prior to the present fundamental law, in determining whether such
changes are revisory or amendatory in nature.

In this regard, it should be noted that the distinction laid down by Justice Felix Q. Antonio
in Javellana v. Executive Secretary13 related to the procedure to be followed in ratifying a
completely new charter proposed by a constitutional convention. The authority or right of the
constitutional convention itself to effect such a revision was not put in issue in that case. As far as
determining what constitutes "amendments" for the purpose of a people's initiative, therefore, we
have neither relevant precedent nor prior experience. We must thus confine ourselves to Dean
Sinco's basic articulation of the two terms.
It is clear from Dean Sinco's explanation that a revision may either be of the whole or only part of the
Constitution. The part need not be a substantial part as a change may qualify as a revision even if it
only involves some of the important provisions. For as long as the intention and plan to be carried
out contemplate a consideration of all the provisions of the Constitution "to determine which should
be altered or suppressed, or whether the whole document should be replaced with an entirely new
one," the proposed change may be deemed a revision and not merely an amendment.

Thus, it is not by the sheer number alone of the proposed changes that the same may be considered
as either an amendment or revision. In so determining, another overriding factor is the "original
intention and plan authorized to be carried out" by the proposed changes. If the same relates to a re-
examination of the entire document to see which provisions remain relevant or if it has far-reaching
effects on the entire document, then the same constitutes a revision and not a mere amendment of
the Constitution.

From the foregoing, it is readily apparent that a combination of the quantitative and qualitative test is
necessary in assessing what may be considered as an amendment or revision. It is not enough that
we focus simply on the physical scope of the proposed changes, but also consider what it means in
relation to the entire document. No clear demarcation line can be drawn to distinguish the two terms
and each circumstance must be judged on the basis of its own peculiar conditions. The
determination lies in assessing the impact that the proposed changes may have on the entire
instrument, and not simply on an arithmetical appraisal of the specific provisions which it seeks to
affect.

In McFadden v. Jordan,14 the California Supreme Court laid down the groundwork for the
combination of quantitative and qualitative assessment of proposed constitutional changes, in order
to determine whether the same is revisory or merely amendatory. In that case, the McFadden court
found the proposed changes extensive since at least 15 of the 25 articles contained in the California
Constitution would either be repealed in their entirety or substantially altered, and four new topics
would be introduced. However, it went on to consider the qualitative effects that the proposed
initiative measure would have on California's basic plan of government. It observed that the proposal
would alter the checks and balances inherent in such plan, by delegating far-reaching and mixed
powers to an independent commission created under the proposed measure. Consequently, the
proposal in McFadden was not only deemed as broad and numerous in physical scope, but was also
held as having a substantive effect on the fundamental governmental plan of the State of California.

The dual aspect of the amendment/revision analysis was reiterated by the California Supreme Court
in Raven v. Deukmeijan.15 Proposition 115, as the initiative in that case was called, would vest in
the United States Supreme Court all judicial interpretative powers of the California courts over
fundamental criminal defense rights in that state. It was observed that although quantitatively, the
proposition did "not seem so extensive as to change directly the substantial entirety of the
Constitution by the deletion or alteration of numerous existing provisions," the same, nonetheless,
"would substantially alter the substance and integrity of the state Constitution as a document of
independent force and effect." Quoting Amador Valley Joint Union High School District v. State
Board of Equalization,16 the Raven court said:

". . . apart from a measure effecting widespread deletions, additions and amendments
involving many constitutional articles, 'even a relatively simple enactment may accomplish
such far reaching changes in the nature of our basic governmental plan as to amount to a
revision also…[A]n enactment which purported to vest all judicial power in the Legislature
would amount to a revision without regard either to the length or complexity of the measure
or the number of existing articles or sections affected by such change.'" (Underscoring
supplied and citations omitted)
Thus, in resolving the amendment/revision issue, the California Court examines both the quantitative
and qualitative effects of a proposed measure on its constitutional scheme. Substantial changes in
either respect could amount to a revision.17

I am persuaded that we can approach the present issue in the same manner. The experience of the
courts in California is not far removed from the standards expounded on by Dean Sinco when he set
out to differentiate between amendment and revision. It is actually consistent, not only with our
traditional concept of the two terms, but also with the mindset of our constitutional framers when they
referred to the disquisition of Justice Antonio in Javellana.18 We must thus consider whether the
proposed changes in this case affect our Constitution in both its substantial physical entirety and in
its basic plan of government.

The question posed is: do the proposed changes, regardless of whether these are simple or
substantial, amount to a revision as to be excluded from the people's right to directly
propose amendments to the fundamental law?

As indicated earlier, we may apply the quantitative/qualitative test in determining the nature of the
proposed changes. These tests are consistent with Dean Sinco's traditional concept of amendment
and revision when he explains that, quantitatively, revision "may result in the rewriting either of the
whole constitution, or the greater part of it, or perhaps only some of its provisions." In any case, he
continues, "the factor that characterizes it as an act of revision is the original intention and plan
authorized to be carried out." Unmistakably, the latter statement refers to the qualitative effect of the
proposed changes.

It may thus be conceded that, quantitatively, the changes espoused by the proponents in this case
will affect only two (2) out of the eighteen (18) articles of the 1987 Constitution, namely, Article VI
(Legislative Department) and Article VII (Executive Department), as well as provisions that will
ensure the smooth transition from a presidential-bicameral system to a parliamentary-unicameral
structure of government. The quantitative effect of the proposed changes is neither broad nor
extensive and will not affect the substantial entirety of the 1987 Constitution.

However, it is my opinion that the proposed changes will have serious qualitative consequences on
the Constitution. The initiative petition, if successful, will undoubtedly alter, not only our basic
governmental plan, but also redefine our rights as citizens in relation to government. The proposed
changes will set into motion a ripple effect that will strike at the very foundation of our basic
constitutional plan. It is therefore an impermissible constitutional revision that may not be effected
through a people's initiative.

Petitioners' main proposal pertains to the shifting of our form of government from the presidential to
the parliamentary system. An examination of their proposal reveals that there will be a fusion of the
executive and legislative departments into one parliament that will be elected on the basis of
proportional representation. No term limits are set for the members of parliament except for those
elected under the party-list system whose terms and number shall be provided by law. There will be
a President who shall be the head of state, but the head of government is the Prime Minister. The
latter and his cabinet shall be elected from among the members of parliament and shall be
responsible to parliament for the program of government.

The preceding proposal indicates that, under the proposed system, the executive and legislature
shall be one and the same, such that parliament will be the paramount governing institution. What
this implies is that there will be no separation between the law-making and enforcement powers of
the state, that are traditionally delineated between the executive and legislature in a presidential
form of government. Necessarily, the checks and balances inherent in the fundamental plan of our
U.S.-style presidential system will be eliminated. The workings of government shall instead be
controlled by the internal political dynamics prevailing in the parliament.

Our present governmental system is built on the separation of powers among the three branches of
government. The legislature is generally limited to the enactment of laws, the executive to the
enforcement of laws and the judiciary to the application of laws. This separation is intended to
prevent a concentration of authority in one person or group that might lead to an irreversible error or
abuse in its exercise to the detriment of our republican institutions. In the words of Justice Laurel, the
doctrine of separation of powers is intended to secure action, to forestall overaction, to prevent
despotism and obtain efficiency.19

In the proposed parliamentary system, there is an obvious lack of formal institutional checks on the
legislative and executive powers of the state, since both the Prime Minister and the members of his
cabinet are drawn from parliament. There are no effective limits to what the Prime Minister and
parliament can do, except the will of the parliamentary majority. This goes against the central
principle of our present constitutional scheme that distributes the powers of government and
provides for counteraction among the three branches. Although both the presidential and
parliamentary systems are theoretically consistent with constitutional democracy, the underlying
tenets and resulting governmental framework are nonetheless radically different.

Consequently, the shift from presidential to parliamentary form of government cannot be regarded as
anything but a drastic change. It will require a total overhaul of our governmental structure and
involve a re-orientation in the cardinal doctrines that govern our constitutional set-up. As explained
by Fr. Joaquin Bernas, S.J., a switch from the presidential system to a parliamentary system would
be a revision because of its over-all impact on the entire constitutional structure.20 It cannot, by any
standard, be deemed as a mere constitutional amendment.

An amendment envisages an alteration of one or a few specific and separable provisions.

The guiding original intention of an amendment is to improve specific parts or to add new
provisions deemed necessary to meet new conditions or to suppress specific portions that
may have become obsolete or that are judged to be dangerous. In revision, however, the
guiding original intention and plan contemplates a re-examination of the entire document, or
of provisions of the document which have over-all implications for the entire document, to
determine how and to what extent they should be altered.21 (Underscoring supplied)

The inclusion of a proposal to convene a constituent assembly likewise shows the intention of the
proponents to effect even more far-reaching changes in our fundamental law. If the original intent
were to simply shift the form of government to the parliamentary system, then there would have
been no need for the calling out of a constituent assembly to propose further amendments to the
Constitution. It should be noted that, once convened, a constituent assembly can do away and
replace any constitutional provision which may not even have a bearing on the shift to a
parliamentary system of government. The inclusion of such a proposal reveals the proponents' plan
to consider all provisions of the constitution, either to determine which of its provisions should be
altered or suppressed or whether the whole document should be replaced with an entirely new one.

Consequently, it is not true that only Articles VI and VII are covered by the alleged people's initiative.
The proposal to convene a constituent assembly, which by its terms is mandatory, will practically
jeopardize the future of the entire Constitution and place it on shaky grounds. The plan of the
proponents, as reflected in their proposed changes, goes beyond the shifting of government from the
presidential to the parliamentary system. Indeed, it could even extend to the "fundamental nature of
our state as a democratic and republican state."
To say that the proposed changes will affect only the constitution of government is therefore a
fallacy. To repeat, the combined effect of the proposed changes to Articles VI and VII and those
pertaining to the Transitory Provisions under Article XVIII indubitably establish the intent and plan of
the proponents to possibly affect even the constitutions of liberty and sovereignty. Indeed, no valid
reason exists for authorizing further amendments or revisions to the Constitution if the intention of
the proposed changes is truly what it purports to be.

There is no question here that only amendments to the Constitution may be undertaken through a
people's initiative and not a revision, as textually reflected in the Constitution itself. This conclusion is
inevitable especially from a comparative examination of Section 2 in relation to Sections 1 and 4 of
Article XVII, which state:

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

SECTION 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once
every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

xxxx

SECTION 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall
be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the approval of such amendment or
revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission of Elections of the sufficiency of the petition.
(Underscoring supplied)

It is clear that the right of the people to directly propose changes to the Constitution is limited to
amendments and does not include a revision thereof. Otherwise, it would have been unnecessary to
provide for Section 2 to distinguish its scope from the rights vested in Congress under Section 1.
The latter lucidly states that Congress may propose both amendments and a revision of the
Constitution by either convening a constituent assembly or calling for a constitutional convention.
Section 2, on the other hand, textually commits to the people the right to propose only
amendments by direct action.

To hold, therefore, that Section 2 allows substantial amendments amounting to revision

obliterates the clear distinction in scope between Sections 1 and 2. The intention, as may be
seen from a cursory perusal of the above provisions, is to provide differing fields of application for
the three modes of effecting changes to the Constitution. We need not even delve into the intent of
the constitutional framers to see that the distinction in scope is definitely marked. We should thus
apply these provisions with a discerning regard for this distinction. Again, McFadden22 is instructive:

". . . The differentiation required is not merely between two words; more accurately it is
between two procedures and between their respective fields of application. Each procedure,
if we follow elementary principles of statutory construction, must be understood to have a
substantial field of application, not to be x x x a mere alternative procedure in the same field.
Each of the two words, then, must be understood to denote, respectively, not only a
procedure but also a field of application appropriate to its procedure. The people of this state
have spoken; they made it clear when they adopted article XVIII and made amendment
relatively simple but provided the formidable bulwark of a constitutional convention as a
protection against improvident or hasty (or any other) revision, that they understood that
there was a real difference between amendment and revision. We find nothing whatsoever in
the language of the initiative amendment of 1911 (art. IV, § 1) to effect a breaking down of
that difference. On the contrary, the distinction appears to be x x x scrupulously preserved by
the express declaration in the amendment x x x that the power to propose and vote on
"amendments to the Constitution" is reserved directly to the people in initiative proceedings,
while leaving unmentioned the power and the procedure relative to constitutional revision,
which revisional power and procedure, it will be remembered, had already been specifically
treated in section 2 of article XVIII. Intervenors' contention--that any change less than a total
one is but amendatory--would reduce to the rubble of absurdity the bulwark so carefully
erected and preserved. Each situation involving the question of amendment, as contrasted
with revision, of the Constitution must, we think, be resolved upon its own facts."

Thus, our people too have spoken when they overwhelmingly ratified the 1987 Constitution, with the
provisions on amendments and revisions under Article XVII. The voice and will of our people cannot
be any clearer when they limited people's initiative to mere amendments of the fundamental law and
excluded revisions in its scope. In this regard, the task of the Court is to give effect to the people's
voice, as expressed unequivocally through the Constitution.

Article XVII on amendments and revisions is called a "constitution of sovereignty" because it defines
the constitutional meaning of "sovereignty of the people." It is through these provisions that the
sovereign people have allowed the expression of their sovereign will and have canalized their
powers which would otherwise be plenary. By approving these provisions, the sovereign people
have decided to limit themselves and future generations in the exercise of their sovereign
power.23 They are thus bound by the constitution and are powerless, whatever their numbers, to
change or thwart its mandates, except through the means prescribed by the Constitution itself.24

It is thus misplaced to argue that the people may propose revisions to the Constitution through
people's initiative because their representatives, whose power is merely delegated, may do
so. While Section 1 of Article XVII may be considered as a provision delegating the sovereign
powers of amendment and revision to Congress, Section 2, in contrast, is a self-limitation on
that sovereign power. In the words of Cooley:

x x x Although by their constitutions the people have delegated the exercise of sovereign
powers to the several departments, they have not thereby divested themselves of the
sovereignty. They retain in their own hands, so far as they have thought it needful to do so, a
power to control the governments they create, and the three departments are responsible to
and subject to be ordered, directed, changed or abolished by them. But this control and
direction must be exercised in the legitimate mode previously agreed upon. The 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, or which, consistently with the Constitution, have been prescribed and
pointed out for them by statute; and if by any portion of the people, however large, an
attempt should be made to interfere with the regular working of the agencies of government
at any other time or in any other mode than as allowed by existing law, either constitutional
or statutory, it would be revolutionary in character, and must be resisted and repressed by
the officers who, for the time being, represent legitimate government.25 (Underscoring
supplied)

Consequently, there is here no case of "the spring rising above its source." Nor is it one where the
people's sovereign power has been relegated to a lesser plane than that of Congress. In choosing to
exercise self-limitation, there is no absence or lack of even a fraction of the sovereign power of the
people since self-limitation itself is an expression of that sovereign power. The people have
chosen to delegate and limit their sovereign power by virtue of the Constitution and are bound by the
parameters that they themselves have ordained. Otherwise, if the people choose to defy their self-
imposed constitutional restraints, we will be faced with a revolutionary situation.26

It has repeatedly been emphasized that ours is a democratic and republican state.27 Even as we
affirm, however, that aspect of direct democracy, we should not forget that, first and foremost, we
are a constitutional democracy. To uphold direct democracy at the expense of the fundamental law
is to sanction, not a constitutional, but an extra-constitutional recourse. This is clearly beyond the
powers of the Court who, by sovereign mandate, is the guardian and keeper of the Constitution.

IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153.

CONSUELO YNARES-SANTIAGO
Associate Justice

____________________

EN BANC

G.R. NO. 174153

RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED

VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors,
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND
VICTORINO F. BALAIS,petitioners-intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE AND CARLOS P. MEDINA, JR., oppositors-
intervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM,
MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO
STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, AND DR.
REGINALD PAMUGAS, oppositors-intervenors,
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROS-
BARAQUEL, oppositors-intervenors,
LUWALHATI ANTONINO, oppositor-intervenor,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS
C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors-intervenors,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R.
OSMENA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA,
ALFREDO S. LIM, AND PANFILO M. LACSON, oppositors-intervenors,
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositors-intervenors,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-
intervenors,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L.
SALVADOR AND RANDALL C. TABAYOYONG, oppostors-intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR,
JR., oppositor-intervenor;

G.R. NO. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q.

SAGUISAG, petitioners,
vs.
COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS, SR.
AND COMMISSIONERS RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. ROMEO
A. BRAWNER, RENE V. SARMIENTO AND JOHN DOE AND PETER DOE, respondents.

x ---------------------------------------------------------------------------------------- x

CONCURRING OPINION

SANDOVAL–GUTIERREZ, J.:

Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be exercised in
choosing one's battlecry, lest it does more harm than good to one's cause. In its original context, the
complete version of this Latin phrase means exactly the opposite of what it is frequently taken to
mean. It originated from a holy man, the monk Alcuin, who advised Charlemagne, "nec audiendi qui
solent dicere vox populi vox Dei quum tumultuositas vulgi semper insaniae proxima sit," meaning,
"And those people should not be listened to who keep on saying, 'The voice of the people is
the voice of God,' since the riotousness of the crowd is always very close to
madness."1 Perhaps, it is by providence that the true meaning of the Latin phrase is revealed upon
petitioners and their allies – that they may reflect upon the sincerity and authenticity of their
"people's initiative."

History has been a witness to countless iniquities committed in the name of God. Wars were waged,
despotism tolerated and oppressions justified – all these transpired as man boasted of God's
imprimatur. Today, petitioners and their allies hum the same rallying call, convincing this Court that
the people's initiative is the "voice of the people" and, therefore, the "voice of God." After a
thorough consideration of the petitions, I have come to realize that man, with his ingenuity and
arrogance, has perfected the craft of imitating the voice of God. It is against this kind of genius that
the Court must guard itself.

The facts of the case are undisputed.

In 1996, the Movement for People's Initiative sought to exercise the power of initiative under Section
2, Article XVII of the Constitution which reads:

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once
every five years thereafter,

The Congress shall provide for the implementation of the exercise of this right.

The exercise was thwarted by a petition for prohibition filed with this Court by Senator Miriam
Defensor Santiago, et al., entitled "Miriam Defensor Santiago, Alexander Padilla and Maria Isabel
Ongpin, petitioners, v. Commission on Elections (COMELEC), Jesus Delfin, Alberto Pedrosa and
Carmen Pedrosa, in their capacities as founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents."2 The case was docketed as G.R. No. 127325. On
March 19, 1997, this Court rendered its Decision in favor of petitioners, holding that Republic Act No.
6735 (R.A. No. 6735), An Act Providing for a System of Initiative and Referendum and Appropriating
Funds Therefor, is "incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned." A majority of eight (8)
Justices fully concurred with this ruling, while five (5) subscribed to the opposite view. One (1)
opined that there is no need to rule on the adequacy of R.A. No. 6735.

On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their positions. One (1)
filed an inhibition and the other one (1) joined the minority opinion. As a consequence, of the thirteen
(13) Justices who participated in the deliberation, six (6) voted in favor of the majority opinion, while
the other six (6) voted in favor of the minority opinion.3

A few months thereafter, or on September 23, 1997, the Court dismissed a similar case,
entitled People's Initiative for Reform, Modernization and Action (PIRMA) v. Commission on
Elections4 on the ground that the COMELEC did not commit grave abuse of discretion when it
dismissed PIRMA's Petition for Initiative to Propose Amendments to the Constitution "it appearing
that that it only complied with the dispositions in the Decision of the Court in G.R. no. 127325
(Santiago v. COMELEC) promulgated on March 19, 1997, and its Resolution of June 10,
1997." Seven (7) Justices voted that there was no need to re-examine its ruling, as regards the
issue of the sufficiency of R.A. No. 6735. Another Justice concurred, but on the different premise
that the case at bar is not the proper vehicle for such re-examination. Five (5) Justice opined
otherwise.

This time, another group known as Sigaw ng Bayan, in coordination with the Union of Local
Authorities of the Philippines (ULAP), have gathered signatures in support of the proposed
amendments to the Constitution, which entail a change in the form of government from bicameral-
presidential to unicameral-parliamentary, thus:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by law, to be
apportioned among the provinces, representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as
far as practicable, contiguous, compact and adjacent territory, and each province must have
at least one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least
twenty-five years old on the day of the election, a resident of his district for at least one year
prior thereto, and shall be elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the party-list system which
shall be provided for by law and whose number shall be equal to twenty per centum of the
total membership coming from the parliamentary districts.

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to
read, as follows:

Section 1. There shall be a President who shall be the Head of State. The executive power
shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime
Minister shall be elected by a majority of all the Members of Parliament from among
themselves. He shall be responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to

a unicameral-Parliamentary form of government, there shall be a new Article XVIII,
entitled "Transitory Provisions," which shall read, as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of
their term at noon on the thirtieth day of June 2010 and shall continue to exercise their
powers under the 1987 Constitution unless impeached by a vote of two thirds of all the
members of the interim parliament.

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death,
permanent disability, resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers and responsibilities of
Prime Minister under Article VII as amended.

Section 2. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution
which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatium up to 26, unless they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform with a unicameral
parliamentary form of government; provided, however, that any and all references therein to
"Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be
changed to read "Parliament;" that any and all references therein to "Member(s) of
Congress," "Senator(s)" or "Member(s) of Parliament" and any and all references to the
"President" and/or "Acting President" shall be changed to read "Prime Minister."

Section 3. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are
hereby be amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they
shall be deemed amended so as to conform to a unicameral Parliamentary System of
government; provided, however, that any and all references therein to "Congress," "Senate,"
 "House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of the House of Representatives" shall be changed to read as "Member(s) of
Parliament" and any and all references to the "President" and/or "Acting President" shall be
changed to read "Prime Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified. It shall be composed of the incumbent Members of the
Senate and the House of Representatives and the incumbent Members of the Cabinet who
are heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon
of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim Parliament and shall preside over its sessions
for the election of the interim Prime Minister and until the Speaker shall have been elected by
a majority vote of all the members of the interim Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of
the thirtieth day of June 2010.

(4) Within forty-five days from ratification of these amendments, the interim Parliament shall
convene to propose amendments to, or revisions of, this Constitution consistent with the
principles of local autonomy, decentralization and a strong bureaucracy.

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from
among the members of the interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim Prime Minister shall oversee
the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President."

(2) The interim Parliament shall provide for the election of the members of Parliament which
shall be synchronized and held simultaneously with the election of all local government
officials. The duty elected Prime Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the expiration of the term of the
incumbent President and Vice President.

Sigaw ng Bayan prepared signature sheets, and written on its upper right hand portion is the
abstract of the proposed amendments, quoted as follows:

Abstract: Do you approve of the amendment of Article VI and VII of the 1987 Constitution,
changing the form of government from the present bicameral-presidential to a unicameral-
parliamentary system of government, in order to achieve greater efficiency, simplicity and
economy in government; and providing an Article XVIII as Transitory Provisions for the
orderly shift from one system to another?

On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners, filed with the
COMELEC a Petition for Initiative to Amend the Constitution.5 Five (5) days thereafter, they filed an
Amended Petition alleging that they are filing the petition in their own behalf and together with
some 6.3 million registered voters who have affixed their signatures on the signature sheets
attached thereto. They claimed that the signatures of registered voters appearing on the signature
sheets, constituting at least twelve per cent (12%) of all registered voters in the country, wherein
each legislative district is represented by at least three per cent (3%) of all the registered voters,
were verified by their respective city or municipal election officers.

Several organizations opposed the petition. 6

In a Resolution dated August 31, 2006, the COMELEC denied due course to the petition, citing as
basis this Court's ruling in Santiago, permanently enjoining it "from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of the system."

Hence, the present petition for certiorari and mandamus praying that this Court set aside the
COMELEC Resolution and direct the latter tocomply with Section 4, Article XVII of the Constitution,
which provides:

Sec. 4 x x x

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the sufficiency of the petition.

I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the petition of Mar-len
Abigail Binay, et al. in G.R. No. 174299. Here, petitioners pray that the COMELEC Chairman and
Commissioners be required to show why they should not be punished for contempt7 of court for
disregarding the permanent injunction issued by this Court in Santiago.

I
Respondent COMELEC did not act with grave abuse of discretion

Without necessarily brushing aside the other important issues, I believe the resolution of the present
petition hinges on this singular issue -- did the COMELEC commit grave abuse of discretion when it
denied Lambino, et al.'s petition for initiative to amend the Constitution on the basis of this Court's
Decision in Santiago v. COMELEC?

In other words, regardless of how the other remaining issues are resolved, still, the ultimate yardstick
is the attendance of "grave abuse of discretion" on the part of the COMELEC.

Jurisprudence teaches that an act of a court or tribunal may only be considered as committed in
grave abuse of discretion when the same was performed in a capricious or whimsical exercise of
judgment. The abuse of discretion must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion or personal hostility.8

The Resolution of respondent COMELEC denying due course to the petition for initiative on the
basis of a case (Santiago) decided by this Court cannot, in any way, be characterized as
"capricious or whimsical," "patent and gross," or "arbitrary and despotic." On the contrary, it
was the most prudent course to take. It must be stressed that in Santiago, this Court permanently
enjoins respondent COMELEC "from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted." It being a fact that Congress has not enacted a sufficient law, respondent COMELEC has
no alternative but to adhere to Santiago. Otherwise, it is vulnerable to a citation for contempt. As
succinctly stated by Chief Justice Artemio V. Panganiban (then Associate Justice) in his Separate
Opinion in the subsequent case of PIRMA vs. COMELEC:9

x x x I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with
said decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest
Court of the land. It had no choice but to obey. Its obedience cannot constitute grave abuse
of discretion. Refusal to act on the PIRMA petition was the only recourse open to the
Comelec. Any other mode of action would have constituted defiance of the Court and would
have been struck down as grave abuse of discretion and contumacious disregard of this
Court's supremacy as the final arbiter of justiciable controversies.

It need not be emphasized that in our judicial hierarchy, this Court reigns supreme. All courts,
tribunals and administrative bodies exercising quasi-judicial functions are obliged to conform to its
pronouncements. It has the last word on what the law is; it is the final arbiter of any justifiable
controversy. In other words, there is only one Supreme Court from whose decisions all other
courts should take their bearings.10 As a warning to lower court judges who would not adhere to
its rulings, this Court, in People v. Santos,11 held:

Now, if a judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that
the application of a doctrine promulgated by this Superiority is against his way of reasoning,
or against his conscience, he may state his opinion on the matter, but rather than disposing
of the case in accordance with his personal views he must first think that it is his duty to
apply the law as interpreted by the Highest Court of the Land, and that any deviation from a
principle laid down by the latter would unavoidably cause, as a sequel, unnecessary
inconveniences, delays and expenses to the litigants. And if despite of what is here said, a
Judge still believes that he cannot follow Our rulings, then he has no other alternative than to
place himself in the position that he could properly avoid the duty of having to render
judgment on the case concerned (Art. 9, C.C.), and he has only one legal way to do that.

Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing the petition of
Lambino, et al. for it merely followed this Court's ruling in Santiago.

Significantly, in PIRMA vs. COMELEC,12 a unanimous Court implicitly recognized that its ruling in
Santiago is the established doctrine and that the COMELEC did not commit grave abuse of
discretion in invoking it, thus:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be
attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA
therein, it appearing that it only complied with the dispositions of this Court in G.R. No.
127325 promulgated on March 19, 1997, and its resolution on June 10, 1997.

Indeed, I cannot characterize as a "grave abuse of discretion" the COMELEC's obedience and
respect to the pronouncement of this Court in Santiago.

II
The doctrine of stare decisis
bars the re-examination of Santiago

It cannot be denied that in Santiago, a majority of the members of this Court or eight (8) Justices (as
against five (5) Justices) concurred in declaring R.A. No. 6735 an insufficient law. When the motion
for reconsideration was denied via an equally-divided Court or a 6-6 vote, it does not mean that the
Decision was overturned. It only shows that the opposite view fails to muster enough votes to modify
or reverse the majority ruling. Therefore, the original Decision was upheld.13 In Ortigas and Company
Limited Partnership vs. Velasco,14 this Court ruled that the denial of a motion or reconsideration
signifies that the ground relied upon have been found, upon due deliberation, to be without
merit, as not being of sufficient weight to warrant a modification of the judgment or final
order.

With Santiago being the only impediment to the instant petition for initiative, petitioners persistently
stress that the doctrine of stare decisis does not bar its re-examination.

I am not convinced. The maxim stare decisis et non quieta movere translates "stand by the
decisions and disturb not what is settled."15 As used in our jurisprudence, it means that "once
this Court has laid down a principle of law as applicable to a certain state of facts, it would
adhere to that principle and apply it to all future cases in which the facts are substantially the
same as in the earlier controversy."16

There is considerable literature about whether this doctrine of stare decisis is a good or bad one, but
the doctrine is usually justified by arguments which focus on the desirability of stability and certainty
in the law and also by notions of justice and fairness. Justice Benjamin Cardozo in his treatise, The
Nature of the Judicial Process stated:

It will not do to decide the same question one way between one set of litigants and the
opposite way between another. 'If a group of cases involves the same point, the parties
expect the same decision. It would be a gross injustice to decide alternate cases on
opposite principles. If a case was decided against me yesterday when I was a
defendant, I shall look for the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and wrong in my breast; it would be an
infringement, material and moral, of my rights." Adherence to precedent must then be
the rule rather than the exception if litigants are to have faith in the even-handed
administration of justice in the courts.17

That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering
the observation of American philosopher William K. Frankena as to what constitutes injustice:

The paradigm case of injustice is that in which there are two similar individuals in
similar circumstances and one of them is treated better or worse than the other. In this
case, the cry of injustice rightly goes up against the responsible agent or group; and unless
that agent or group can establish that there is some relevant dissimilarity after all between
the individuals concerned and their circumstances, he or they will be guilty as charged.18

Although the doctrine of stare decisis does not prevent re-examining and, if need be, overruling prior
decisions, "It is x x x a fundamental jurisprudential policy that prior applicable precedent usually must
be followed even though the case, if considered anew, might be decided differently by the current
justices. This policy x x x 'is based on the assumption that certainty, predictability and
stability in the law are the major objectives of the legal system; i.e., that parties should be
able to regulate their conduct and enter into relationships with reasonable assurance of the
governing rules of law.19 Accordingly, a party urging overruling a precedent faces a rightly onerous
task, the difficulty of which is roughly proportional to a number of factors, including the age of the
precedent, the nature and extent of public and private reliance on it, and its consistency or
inconsistency with other related rules of law. Here, petitioners failed to discharge their task.

Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than nine (9) years
ago. During that span of time, the Filipino people, specifically the law practitioners, law professors,
law students, the entire judiciary and litigants have recognized this Court's Decision as a precedent.
In fact, the Santiago doctrine was applied by this Court in the subsequent case of PIRMA. Even the
legislature has relied on said Decision, thus, several bills have been introduced in both Houses of
Congress to cure the deficiency. I cannot fathom why it should be overturned or set aside merely on
the basis of the petition of Lambino, et al. Indeed, this Court's conclusion in Santiago that R.A. No.
6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned remains a precedent and must be upheld.

III
The proposed constitutional changes constitute revisions and not mere amendments

Article XVII of the 1987 Constitution lays down the means for its amendment and revision. Thus:

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its members; or

(2) A Constitutional Convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered votes, of which every legislative district must be represented by at least three per
centum of the registered voters therein. x x x. (Emphasis supplied)

At the outset, it must be underscored that initiative and referendum, as means by which the people
can directly propose changes to the Constitution, were not provided for in the 1935 and 1973
Constitutions. Thus, under these two (2) Constitutions, there was no demand to draw the distinction
between an amendment and a revision, both being governed by a uniform process. This is not so
under our present Constitution. The distinction between an amendment and a revision becomes
crucial because only amendments are allowed under the system of people's initiative. Revisions are
within the exclusive domain of Congress, upon a vote of three-fourths of all its members, or of a
Constitutional Convention.

The deliberations of the 1986 Constitutional Commission is explicit that Section 2, Article XVII covers
only amendments, thus:

The sponsor, Commissioner Suarez, is recognized.

MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given us last night, we submitted this afternoon a complete Committee Report No.
7 which embodies the proposed provision governing initiative. This is now covered by
Section 2 of the complete committee report. With the permission of the Members, may I
quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.
 This completes the blanks appearing in the original Committee Report No. 7. This proposal
was suggested on the theory that this matter of initiative which came about because of the
extraordinary developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee members felt that
this system of initiative should be limited to amendments to the Constitution and
should not extend to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or Revision.

xxx xxx xxx

MR. MAAMBONG: Madam President, will the distinguished proponent of the amendment
yield to a few questions?

MR. DAVIDE: With pleasure, Madam President.

MR. MAAMBONG: My first question, Commissioner Davide's proposed amendment on

line I refers to "amendments." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision?"

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not
"revision"

MR. MAAMBONG: Thank you.20

Considering that the initiative on the Constitution only permits amendments, it is imperative to
examine whether petitioners' proposed changes partake of the nature of amendments, not revisions.

The petition for initiative filed with the COMELEC by Lambino, et al. sought to amend the following
provisions of the 1987 Constitution: Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative
Department); Sections 1, 2, 3 and 4 of Article VII (The Executive Department). It further includes
Article XVIII (Transitory Provisions) for the purpose of insuring an orderly transition from the
bicameral-presidential to a unicameral-parliamentary form of government.

Succinctly, the proposals envision a change in the form of government, from bicameral-presidential
to unicameral-parliamentary; conversion of the present Congress of the Philippines to an Interim
National Assembly; change in the terms of Members of Parliament; and the election of a Prime
Minister who shall be vested with executive power.

Petitioners contend that the proposed changes are in the nature of amendments, hence, within the
coverage of a "people's initiative."

I disagree.

The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a member of the 1986
Constitutional Commission, characterized an amendment and a revision to the Constitution as
follows:

An amendment envisages an alteration of one or a few specific and separable

provisions. The guiding original intention of an amendment is to improve specific parts or to
 add new provisions deemed necessary to meet new conditions or to suppress specific
portions that may have become obsolete or that are judged to be dangerous. In revision
however, the guiding original intention and plan contemplates a re-examination of the
entire document, or of provisions of the document which have over-all implications
for the document to determine how and to what extent they should be altered.21

Obviously, both "revision" and amendment" connote change; any distinction between the two must
be based upon the degree of change contemplated. In Kelly v. Laing,22 the Supreme Court of
Michigan made the following comparison of the two terms:

"Revision" and "amendment" have the common characteristics of working changes in the
charter, and are sometimes used in exactly the same sense but there is an essential
difference between them.

"Revision" implies a reexamination of the whole law and a redraft without obligation
to maintain the form, scheme, or structure of the old. As applied to fundamental law,
such as a constitution or charter, it suggests a convention to examine the whole subject and
to prepare and submit a new instrument whether the desired changes from the old are few or
many. Amendment implies continuance of the general plan and purpose of the law,
with corrections to better accomplish its purpose. Basically, revision suggests
fundamental change, while amendment is a correction of detail.

Although there are some authorities which indicate that a change in a city's form of government may
be accomplished by a process of "amendment," the cases which so hold seem to involve statutes
which only distinguish between amendment and totally new charters.23 However, as in Maine law,
where the statute authorizing the changes distinguishes between "charter amendment" and "charter
revision," it has been held that "(a) change in the form of government of a home rule city may
be made only by revision of the city charter, not by its amendment."24

In summary, it would seem that any major change in governmental form and scheme would probably
be interpreted as a "revision" and should be achieved through the more thorough process of
deliberation.

Although, at first glance, petitioners' proposed changes appear to cover isolated and specific
provisions only, however, upon careful scrutiny, it becomes clear that the proposed changes will
alter the very structure of our government and create multifarious ramifications. In other
words, the proposed changes will have a "domino effect" or, more appropriately, "ripple effect" on
other provisions of the Constitution.

At this juncture, it must be emphasized that the power reserved to the people to effect changes in
the Constitution includes the power to amend anysection in such a manner that the proposed
change, if approved, would "be complete within itself, relate to one subject and not
substantially affect any other section or article of the Constitution or require further
amendments to the Constitution to accomplish its purpose."25 This is clearly not the case here.

Firstly, a shift from a presidential to a parliamentary form of government affects the well-enshrined
doctrine of separation of powers of government, embodied in our Constitution, by providing for an
Executive, Legislative and Judiciary Branches. In a Parliamentary form of government, the Executive
Branch is to a certain degree, dependent on the direct or indirect support of the Parliament, as
expressed through a "vote of confidence." To my mind, this doctrine of separation of powers is
so interwoven in the fabric of our Constitution, that any change affecting such doctrine must
necessarily be a revision.
In McFadden vs. Jordan,26 the California Supreme Court ruled as follows:

It is thus clear that that a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a convention called for that
purpose x x x. Consequently, if the scope of the proposed initiative measure now
before us is so broad that if such measure became law a substantial revision of our
present state Constitution would be effected, then the measure may not properly be
submitted to the electorate until and unless it is first agreed upon by a constitutional
convention. x x x.

Secondly, the shift from a bicameral to a unicameral form of government is not a mere amendment,
but is in actuality a revision, as set forth in Adams v. Gunter27:

The proposal here to amend Section I of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but
provides for a change in the form of the legislative branch of government, which has
been in existence in the United States Congress and in all of the states of the nation, except
one, since the earliest days. It would be difficult to visualize a more revolutionary
change. The concept of a House and a Senate is basic in the American form of government.
It would not only radically change the whole pattern of the government in this state
and tear apart the whole fabric of the Constitution, but would even affect the physical
facilities necessary to carry on government.

Thirdly, the proposed changes, on their face, signify revisions rather than amendments, especially,
with the inclusion of the following "omnibus provision":

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a

unicameral-Parliamnetary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions" which shall read, as follows:

xxxxxxxxx

Section 3. Upon the expiration of the term of the incumbent President and Vice-President,
with the exceptions of Section 1,2,3 and 4 of Article VII of the 1987 Constitution which are
hereby amended x x x x x x and all other Sections of Article VII shall be retained and
numbered sequentially as Section 2, ad seriatim up to 14,unless they shall be inconsistent
with Section 1 hereof, in which case they shall be deemed amended so as to conform
to a unicameral Parliamentary system of government x x x x x x .

xxxxxxxxx

Section 4. (1) x x x

(3) Within forty-five days from ratification of these amendments, the Interim Parliament shall
convene to propose amendments to, or revisions of, this Constitution, consistent with the
principles of local autonomy, decentralization and a strong bureaucracy.

The above provisions will necessarily result in a "ripple effect" on the other provisions of the
Constitution to make them conform to the qualities of unicameral-parliamentary form of government.
With one sweeping stroke, these proposed provisions automatically revise some provisions of the
Constitution. In McFadden, the same practice was considered by the Court to be in the nature
of substantial revision, necessitating a constitutional convention. I quote the pertinent portion
of its ruling, thus:

There is in the measure itself, no attempt to enumerate the various and many articles and
sections of our present Constitution which would be affected, replaced or repealed. It
purports only to add one new article but its framers found it necessary to include the omnibus
provision (subdivision (7) of section XII) that "If any section, subsection, sentence, clause or
phrase of the constitution is in conflict with any of the provisions of this article, such section,
subsection, sentence, clause, or phrase is to the extent of such conflict hereby repealed. x x
x Consequently, if the scope of the proposed intitiative measure now before us is so broad
that if such measure become law a substantial revision of our present state Constitution
would be be effected, then the measure may not properly be submitted to the electorate until
and unless it is first agreed upon by a constitutional convention.28

Undoubtedly, the changes proposed by the petitioners are not mere amendments which will only
affect the Articles or Sections sought to be changed. Rather, they are in the nature of revisions
which will affect considerable portions of the Constitution resulting in the alteration of our form of
government. The proposed changes cannot be taken in isolation since these are connected or
"interlocked" with the other provisions of our Constitution. Accordingly, it has been held that: "If the
changes attempted are so sweeping that it is necessary to include the provisions interlocking
them, then it is plain that the plan would constitute a recasting of the whole Constitution and
this, we think, it was intended to be accomplished only by a convention under Section 2
which has not yet been disturbed."29

I therefore conclude that since the proposed changes partake of the nature of a revision of the
Constitution, then they cannot be the subject of an initiative. On this matter, Father Bernas
expressed this insight:

But why limit initiative and referendum to simple amendments? The answer, which one can
easily glean from the rather long deliberation on initiative and referendum in the 1986
Constitutional Commission, is practicality. In other words, who is to formulate the revision or
how is it to be formulated? Revision, as concretely being proposed now, is nothing less than
a rebuilding of the Philippine constitutional structure. Who were involved in formulating
the structure? What debates ensued? What records are there for future use in interpreting
the provisions which may be found to be unclear?

In a deliberative body like Congress or a Constitutional Convention, decisions are reached

after much purifying debate. And while the deliberations proceed, the public has the
opportunity to get involved. It is only after the work of an authorized body has been
completed that it is presented to the electorate for final judgment. Careful debate is
important because the electorate tends to accept what is presented to it even sight
unseen.30

IV
R.A. No. 6735 is insufficient to implement the People's initiative

Section 2, Article XVII of the 1987 Constitution reads:

Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be
 authorized within five years following the ratification of this Constitution nor oftener than once
every five years thereafter,

The Congress shall provide for the implementation of the exercise of this right.

On its face, Section 2 is not a self-executory provision. This means that an enabling law is
imperative for its implementation. Thus, Congress enacted R.A. No. 6735 in order to breathe life into
this constitutional provision. However, as previously narrated, this Court struck the law
in Santiago for being incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is concerned.

The passage of time has done nothing to change the applicability of R.A. No. 6735. Congress
neither amended it nor passed a new law to supply its deficiencies.

Notwithstanding so, this Court is being persuaded to take a 360-degree turn, enumerating three (3)
justifications why R.A. No. 6735 must be considered a sufficient law, thus:

1) The text of R.A. No. 6735 is replete with references to the right of people to
initiate changes to the Constitution;

2) The legislative history of R.A. No. 6735 reveals the clear intent of the lawmakers to use
it as instrument to implement the people's initiative; and

3) The sponsorship speeches by the authors of R.A. No. 6735 demonstrate the legislative
intent to use it as instrument to implement people's initiative.

I regret to say that the foregoing justifications are wanting.

A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only initiatives
on national and local legislation. Its references to initiatives on the Constitution are few,
isolated and misplaced. Unlike in the initiatives on national and local legislation, where R.A. No.
6735 provides a detailed, logical, and exhaustive enumeration on their implementation,31 however,
as regards initiative on the Constitution, the law merely:

(a) mentions the word "Constitution" in Section 2;32

(b) defines "initiative on the Constitution" and includes it in the enumeration of the three
systems of initiative in Section 3;33

(c) speaks of "plebiscite" as the process by which the proposition in an initiative on the
Constitution may be approved or rejected by the people;34

(d) reiterates the constitutional requirements as to the number of voters who should sign the
petition;35 and

(e) provides the date for the effectivity of the approved proposition.36

In other words, R.A. No. 6735 does not specify the procedure how initiative on the Constitution may
be accomplished. This is not the enabling law contemplated by the Constitution. As pointed out by
oppositor-intervenor Alternative Law Groups Inc., since the promulgation of the Decision in Santiago,
various bills have been introduced in both Houses of Congress providing for
a complete and adequate process for people's initiative, such as:

· Names, signatures and addresses of petitioners who shall be registered voters;

· A statement of the provision of the Constitution or any part thereof sought to be amended
and the proposed amendment;

· The manner of initiation - in a congressional district through a petition by any individual,

group, political party or coalition with members in the congressional district;

· The language used: the petition should be printed in English and translated in the local
language;

· Signature stations to be provided for;

· Provisions pertaining to the need and manner of posting, that is, after the signatures shall
have been verified by the Commission, the verified signatures shall be posted for at least
thirty days in the respective municipal and city halls where the signatures were obtained;

· Provisions pertaining to protests allowed any protest as to the authenticity of the signatures
to be filed with the COMELEC and decided within sixty (60) days from the filing of said
protest.

None of the above necessary details is provided by R.A. No. 6735, thus, demonstrating
its incompleteness and inadequacy.

V
Petitioners are not Proper Parties to
File the Petition for Initiative

VI
The Petition for Initiative Filed with the COMELEC Does not Comply with Section 2, Article
XVII of the Constitution and R.A. No. 6735

I shall discuss the above issues together since they are interrelated and inseparable. The
determination of whether petitioners are proper parties to file the petition for initiative in behalf of the
alleged 6.3 million voters will require an examination of whether they have complied with the
provisions of Section 2, Article XVII of the Constitution.

To reiterate, Section 2, Article XVII of the Constitution provides:

Section 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented by at
least three per centum of the registered voters therein. No amendment under this section
shall be authorized within five years following the ratification of this Constitution nor oftener
than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right. (Underscoring
supplied)
The mandate of the above constitutional provisions is definite and categorical. For a people's
initiative to prosper, the following requisites must be present:

1. It is "the people" themselves who must "directly propose" "amendments" to the

Constitution;

2. The proposed amendments must be contained in "a petition of at least twelve per
centum of the total number of registered voters;" and

3. The required minimum of 12% of the total number of registered voters "must be
represented by at least three per centum of the registered voters" of "every legislative
district."

In this case, however, the above requisites are not present.

The petition for initiative was filed with the COMELEC by petitioners Lambino and Aumentado, two
registered voters. As shown in the "Verification/Certification with Affidavit of Non-Forum
Shopping" contained in their petition, they alleged under oath that they have caused the preparation
of the petition in their personal capacity as registered voters "and as representatives" of the
supposed 6.3 million registered voters. This goes to show that the questioned petition was not
initiated directly by the 6.3 million people who allegedly comprised at least 12% of the total number
of registered voters, as required by Section 2. Moreover, nowhere in the petition itself could be
found the signatures of the 6.3 million registered voters. Only the signatures of petitioners
Lambino and Aumentado were affixed therein "as representatives" of those 6.3 million people.
Certainly, that is not the petition for people's initiative contemplated by the Constitution.

Petitioners Lambino and Aumentado have no authority whatsoever to file the petition "as
representatives" of the alleged 6.3 million registered voters. Such act of representation is
constitutionally proscribed. To repeat, Section 2 strictly requires that amendments to the
Constitution shall be "directly proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters." Obviously, the phrase
"directly proposed by the people" excludes any person acting as representative or agent of the
12% of the total number of registered voters. The Constitution has bestowed upon the people the
right to directly propose amendments to the Constitution. Such right cannot be usurped by anyone
under the guise of being the people's representative. Simply put, Section 2 does not recognize acts
of representation. For it is only "the people" (comprising the minimum of 12% of the total number of
registered voters, of which every legislative district must be represented by at least three per centum
of the registered voters therein) who are the proper parties to initiate a petition proposing
amendments to the Constitution. Verily, the petition filed with the COMELEC by herein petitioners
Lambino and Aumentado is not a people's initiative. Necessarily, it must fail.

Cororarilly, the plea that this Court should "hear" and "heed" "the people's voice" is baseless and
misleading. There is no people's voice to be heard and heeded as this petition for initiative is
not truly theirs, but only of petitioners Lambino and Aumentado and their allies.

VII
The issues at bar are not political questions.

Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that: (1) "the validity of
the exercise of the right of the sovereign people to amend the Constitution and their will, as
expressed by the fact that over six million registered voters indicated their support of the Petition for
initiative is a purely political question;" and (2) "[t]he power to propose amendments to the
Constitution is a right explicitly bestowed upon the sovereign people. Hence, the determination by
the people to exercise their right to propose amendments under the system of initiative is a
sovereign act and falls squarely within the ambit of a political question."

The "political question doctrine" was first enunciated by the US Supreme Court in Luther v.
Borden.37 Faced with the difficult question of whether the Supreme Court was the appropriate
institution to define the substantive content of republicanism, the US Supreme Court, speaking thru
Mr. Justice Roger B. Taney, concluded that "the sovereignty in every State resides in the people,
as to how and whether they exercised it, was under the circumstances of the case, a political
question to be settled by the political power." In other words, the responsibility of settling certain
constitutional questions was left to the legislative and executive branches of the government.

The Luther case arose from the so-called "Dorr Rebellion" in the State of Rhode Island. Due to
increased migration brought about by the Industrial Revolution, the urban population of Rhode Island
increased. However, under the 1663 Royal Charter which served as the State Constitution, voting
rights were largely limited to residents of the rural districts. This severe mal-apportionment of
suffrage rights led to the "Dorr Rebellion." Despairing of obtaining remedies for their
disenfranchisement from the state government, suffrage reformers invoked their rights under the
American Declaration of Independence to "alter or abolish" the government and to institute a new
one. The reformers proceeded to call for and hold an extralegal constitutional convention, drafted a
new State Constitution, submitted the document for popular ratification, and held elections under it.
The State government, however, refused to cede power, leading to an anomalous situation in that
for a few months in 1842, there were two opposing state governments contending for legitimacy and
possession of state of offices.

The Rhode Island militia, under the authority of martial law, entered and searched the house of
Martin Luther, a Dorr supporter. He brought suit against Luther Borden, a militiaman. Before the US
Supreme Court, Luther's counsel argued that since the State's archaic Constitution prevented a fair
and peaceful address of grievances through democratic processes, the people of Rhode Island had
instead chosen to exercise their inherent right in popular sovereignty of replacing what they saw as
an oppressive government. The US Supreme Court deemed the controversy as non-justiciable
and inappropriate for judicial resolution.

In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the phrase "political thicket" to describe
situations where Federal courts should not intervene in political questions which they have neither
the competence nor the commission to decide. In Colgrove, the US Supreme Court, with a narrow 4-
3 vote branded the apportionment of legislative districts in Illinois "as a political question and that
the invalidation of the districts might, in requiring statewide elections, create an evil greater
than that sought to be remedied."

While this Court has adopted the use of Frankfurter's "political thicket," nonetheless, it has sought to
come up with a definition of the term "political question." Thus, in Vera v. Avelino,39 this Court ruled
that properly, political questions are "those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government."
In Tañada and Macapagal v. Cuenco,40 the Court held that the term political question connotes, in
legal parlance, what it means in ordinary parlance, namely, a question of policy. It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure.

In Aquino v. Enrile,41 this Court adopted the following guidelines laid down in Baker v. Carr42 in
determining whether a question before it is political, rather than judicial in nature, to wit:
 1) there is a textually demonstrable constitutional commitment of the issue to a coordinate
political department; or

2) there is a lack of judicially discoverable and manageable standards for resolving it; or

3) there is the sheer impossibility of deciding the matter without an initial policy determination
of a kind clearly for non-judicial discretion; or

4) there is the sheer impossibility of the Court's undertaking an independent resolution

without expressing lack of respect due the coordinate branches of government; or

5) there is an unusual need for unquestioning adherence to a political decision already

made; or

6) there exists the potentiality of embarrassment arising from multifarious pronouncements

by various departments on one question.

None of the foregoing standards is present in the issues raised before this Court. Accordingly, the
issues are justiciable. What is at stake here is the legality and not the wisdom of the act
complained of.

Moreover, even assuming arguendo that the issues raised before this Court are political in nature, it
is not precluded from resolving them under its expanded jurisdiction conferred upon it by Section 1,
Article VIII of the Constitution, following Daza v. Singson.43 As pointed out in Marcos v.
Manglapus,44 the present Constitution limits resort to the political question doctrine and broadens the
scope of judicial power which the Court, under previous charters, would have normally and ordinarily
left to the political departments to decide.

CONCLUSION

In fine, considering the political scenario in our country today, it is my view that the so-called
people's initiative to amend our Constitution from bicameral-presidential to unicameral-parliamentary
is actually not an initiative of the people, but an initiative of some of our politicians. It has not been
shown by petitioners, during the oral arguments in this case, that the 6.3 million registered voters
who affixed their signatures understood what they signed. In fact, petitioners admitted that the
Constitutional provisions sought to be amended and the proposed amendments were not explained
to all those registered voters. Indeed, there will be no means of knowing, to the point of judicial
certainty, whether they really understood what petitioners and their group asked them to sign.

Let us not repeat the mistake committed by this Court in Javellana v. The Executive Secretary.45 The
Court then ruled that "This being the vote of the majority, there is no further judicial obstacle to the
new Constitution being considered in force and effect," although it had notice that the Constitution
proposed by the 1971 Constitutional Convention was not validly ratified by the people in accordance
with the 1935 Constitution. The Court concluded, among others, that the viva voce voting in the
Citizens' Assemblies "was and is null and void ab initio." That was during martial law when perhaps
majority of the justices were scared of the dictator. Luckily at present, we are not under a martial law
regime. There is, therefore, no reason why this Court should allow itself to be used as a legitimizing
authority by the so-called people's initiative for those who want to perpetuate themselves in power.

At this point, I can say without fear that there is nothing wrong with our present government
structure. Consequent1y, we must not change it. America has a presidential type of government.
Yet, it thrives ideally and has become a super power. It is then safe to conclude that what we
should change are some of the people running the government, NOT the SYSTEM.

According to petitioners, the proposed amendment would effect a more efficient, more economical
and more responsive government.

Is there hope that a new breed of politicians, more qualified and capable, may be elected as
members and leaders of the unicameral-parliament? Or will the present members of the Lower
House continue to hold their respective positions with limitless terms?

Will the new government be more responsive to the needs of the poor and the marginalized? Will it
be able to provide homes for the homeless, food for the hungry, jobs for the jobless and protection
for the weak?

This is a defining moment in our history. The issue posed before us is crucial with transcendental
significance. And history will judge us on how we resolve this issue – shall we allow the revision of
our Constitution, of which we are duty bound to guard and revere, on the basis of a doubtful people's
initiative?

Amending the Constitution involving a change of government system or structure is a herculean task
affecting the entire Filipino people and the future generations. Let us, therefore, entrust this duty to
more knowledgeable people elected as members of a Constitutional Convention.

Yes, the voice of the people is the voice of God. But under the circumstances in this case, the
voice of God is not audible.

WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R.
No. 174299.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

____________________

EN BANC

G.R. No. 174153

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED

VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

G.R. No. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR.,
and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and JOHN DOE and PETER DOE, respondents.
x ---------------------------------------------------------------------------------------- x

SEPARATE CONCURRING OPINION

CALLEJO, SR., J.:

I am convinced beyond cavil that the respondent Commission on Elections (COMELEC) did not
commit an abuse of its discretion in dismissing the amended petition before it. The proposals of
petitioners incorporated in said amended petition are for the revision of the 1987 Constitution.
Further, the amended petition before the respondent COMELEC is insufficient in substance.

The Antecedents

On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC
a petition entitled "IN THE MATTER OF PROPOSING AMENDMENTS TO THE 1987
CONSTITUTION THROUGH A PEOPLE'S INITIATIVE: A SHIFT FROM A BICAMERAL
PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY GOVERNMENT BY AMENDING
ARTICLES VI AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM THE PRESIDENTIAL TO THE PARLIAMENTARY SYSTEM." The case was docketed
as EM (LD)-06-01. On August 30, 2006, petitioners filed an amended petition. For brevity, it is
referred to as the petition for initiative.

Petitioners alleged therein, inter alia, that they filed their petition in their own behalf and together with
those who have affixed their signatures to the signature sheets appended thereto who are Filipino
citizens, residents and registered voters of the Philippines, and they constitute at least twelve
percent (12%) of all the registered voters in the country, wherein each legislative district is
represented by at least three percent (3%) of all the registered voters therein.

Petitioners further alleged therein that the filing of the petition for initiative is based on their
constitutional right to propose amendments to the 1987 Constitution by way of people's initiative, as
recognized in Section 2, Article XVII thereof, which provides:

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once
every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right."

According to petitioners, while the above provision states that "(T)he Congress shall provide for the
implementation of the exercise of this right," the provisions of Section 5(b) and (c), along with
Section 7 of Republic Act (RA) 6735,1are sufficient enabling details for the people's exercise of the
power. The said sections of RA 6735 state:

Sec. 5. Requirements. – (a) To exercise the power x x x

(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum
(12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters
 therein. Initiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.

(c) The petition shall state the following:

c.1. contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2. the proposition;

c.3. the reason or reasons therefor;

c.4. that it is not one of the exceptions provided herein;

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

c.6. an abstract or summary in not more than one hundred (100) words which shall
be legibly written or printed at the top of every page of the petition.

xxxx

Sec. 7. Verification of Signatures. – The Election Registrar shall verify the signatures on the
basis of the registry list of voters, voters' affidavits and voters identification cards used in the
immediately preceding election.

They also alleged that the COMELEC has the authority, mandate and obligation to give due course
to the petition for initiative, in compliance with the constitutional directive for the COMELEC to
"enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall."2

Petitioners incorporated in their petition for initiative the changes they proposed to be incorporated in
the 1987 Constitution and prayed that the COMELEC issue an order:

1. Finding the Petition to be sufficient pursuant to Section 4, Article XVII of the 1987
Constitution;

2. Directing the publication of the Petition in Filipino and English at least twice in newspapers
of general and local circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the
Certification by this Honorable Commission of the sufficiency of this Petition, to allow the
Filipino people to express their sovereign will on the proposition.

Petitioners pray for such other reliefs deemed just and equitable in the premises.

The Ruling of the respondent COMELEC

On August 31, 2006, the COMELEC promulgated the assailed Resolution denying due course and
dismissing the petition for initiative. The COMELEC ruled that:
 We agree with the petitioners that this Commission has the solemn Constitutional duty to
enforce and administer all laws and regulations relative to the conduct of, as in this case,
initiative.

This mandate, however, should be read in relation to the other provisions of the Constitution
particularly on initiative.

Section 2, Article XVII of the 1987 Constitution provides:

"Sec. 2. Amendments to this Constitution may, likewise, be directly proposed by the

people through initiative, upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein. x x x.

The Congress shall provide for the implementation of the exercise of this right."

The aforequoted provision of the Constitution being a non-self-executory provision needed

an enabling law for its implementation. Thus, in order to breathe life into the constitutional
right of the people under a system of initiative to directly propose, enact, approve or reject, in
whole or in part, the Constitution, laws, ordinances, or resolution, Congress enacted RA
6735.

However, the Supreme Court, in the landmark case of Santiago v. Commission on

Elections struck down the said law for being incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned

The Supreme Court, likewise, declared that this Commission should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on amendments
to the Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.

Thus, even if the signatures in the instant Petition appear to meet the required minimum per
centum of the total number of registered voters, of which every legislative district is
represented by at least three per centum of the registered voters therein, still the Petition
cannot be given due course since the Supreme Court categorically declared RA 6735 as
inadequate to cover the system of initiative on amendments to the Constitution.

This Commission is not unmindful of the transcendental importance of the right of the people
under a system of initiative. However, neither can we turn a blind eye to the pronouncement
of the High Court that in the absence of a valid enabling law, this right of the people remains
nothing but an "empty right," and that this Commission is permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution. (Citations omitted.)

Aggrieved, petitioners elevated the case to this Court on a petition

for certiorari and mandamus under Rule 65 of the Rules of Court.

The Petitioners' Case

In support of their petition, petitioners alleged, inter alia, that:

 I.

THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF

DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND TO GIVE DUE COURSE
TO THE PETITION FOR INITIATIVE, BECAUSE THE CITED SANTIAGO RULING OF 19
MARCH 1997 CANNOT BE CONSIDERED THE MAJORITY OPINION OF THE SUPREME
COURT EN BANC, CONSIDERING THAT UPON ITS RECONSIDERATION AND FINAL
VOTING ON 10 JUNE 1997, NO MAJORITY VOTE WAS SECURED TO DECLARE
REPUBLIC ACT NO. 6735 AS INADEQUATE, INCOMPLETE AND INSUFFICIENT IN
STANDARD.

II.

THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC ACT NO. 8189 AND
EXISTING APPROPRIATION OF THE COMELEC PROVIDE FOR SUFFICIENT DETAILS
AND AUTHORITY FOR THE EXERCISE OF PEOPLE'S INITIATIVE, THUS, EXISTING
LAWS TAKEN TOGETHER ARE ADEQUATE AND COMPLETE.

III.

THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF

DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND IN REFUSING TO GIVE
DUE COURSE TO THE PETITION FOR INITIATIVE, THEREBY VIOLATING AN EXPRESS
CONSTITUTIONAL MANDATE AND DISREGARDING AND CONTRAVENING THE WILL
OF THE PEOPLE.

A.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE

INSTANT PETITION FOR INITIATIVE FILED BY THE PETITIONERS.

1.

THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE

PEOPLE THE POWER TO PROPOSE AMENDMENTS AND THE PEOPLE
THEMSELVES ARE NOW GIVING VIBRANT LIFE TO THIS
CONSTITUTIONAL PROVISION

2.

PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH 1997,

THE RIGHT OF THE PEOPLE TO EXERCISE THE SOVEREIGN POWER
OF INITIATIVE AND RECALL HAS BEEN INVARIABLY UPHELD

3.

THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS IS A

POLITICAL QUESTION WHICH SHALL BE DETERMINED SOLELY BY THE
SOVEREIGN PEOPLE.

4.
 BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE PETITION
FOR INITIATIVE DULY VERIFIED BY THE ELECTION OFFICERS, THE
PEOPLE HAVE CHOSEN TO PERFORM THIS SACRED EXERCISE OF
THEIR SOVEREIGN POWER.

B.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE

INSTANT PETITION FOR INITIATIVE FILED BY THE PETITIONERS

C.

THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC ONLY

APPLIES TO THE DELFIN PETITION.

1.

IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT OTHER

STATEMENTS IN THE BODY OF THE DECISION THAT GOVERNS THE
RIGHTS IN CONTROVERSY.

IV.

THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT OR

PERFORM A DUTY MANDATED BY LAW.

A.

THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE INITIATIVE FOR

PLEBISCITE.3

Petitioners Failed to Allege and Demonstrate All the Essential

Facts To Establish the Right to a Writ of Certiorari

Section 1, Rule 65 of the Rules of Court reads:

Sec. 1. Petition for certiorari. – When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of
Section 3, Rule 46.

A writ for certiorari may issue only when the following requirements are set out in the petition and
established:
 (1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-
judicial functions;

(2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction; and

(3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of
law. x x x4

The Court has invariably defined "grave abuse of discretion," thus:

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised
arbitrarily or despotically. For certiorari to lie, there must be a capricious, arbitrary and
whimsical exercise of power, the very antithesis of the judicial prerogative in accordance with
centuries of both civil law and common law traditions.5

There is thus grave abuse of discretion on the part of the COMELEC when it acts in a capricious,
whimsical, arbitrary or despotic manner in the exercise of its judgment amounting to lack of
jurisdiction. Mere abuse of discretion is not enough.6 The only question involved is jurisdiction, either
the lack or excess thereof, and abuse of discretion warrants the issuance of the extraordinary
remedy of certiorari only when the same is grave, as when the power is exercised in an arbitrary or
despotic manner by reason of passion, prejudice or personal hostility. A writ of certiorari is a remedy
designed for the correction of errors of jurisdiction and not errors of judgment.7 An error of judgment
is one in which the court may commit in the exercise of its jurisdiction, which error is reversible only
by an appeal.8

In the present case, it appears from the assailed Resolution of the COMELEC that it denied the
petition for initiative solely in obedience to the mandate of this Court in Santiago v. Commission on
Elections.9 In said case, the Court En Banc permanently enjoined the COMELEC from entertaining
or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of the system. When the
COMELEC denied the petition for initiative, there was as yet no valid law enacted by Congress to
provide for the implementation of the system.

It is a travesty for the Court to declare the act of the COMELEC in denying due course to the petition
for initiative as "capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent
to lack of jurisdiction." In fact, in so doing, the COMELEC merely followed or applied, as it ought to
do, the Court's ruling in Santiago to the effect that Section 2, Article XVII of the Constitution on the
system of initiative is a non self-executory provision and requires an enabling law for its
implementation. In relation thereto, RA 6735 was found by the Court to be "incomplete, inadequate,
or wanting in essential terms and conditions" to implement the constitutional provision on initiative.
Consequently, the COMELEC was "permanently enjoined from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system." The decision of the Court En Banc
interpreting RA 6735 forms part of the legal system of the Philippines.10 And no doctrine or principle
laid down by the Court En Banc may be modified or reversed except by the Court En
Banc,11 certainly not by the COMELEC. Until the Court En Banc modifies or reverses its decision, the
COMELEC is bound to follow the same.12 As succinctly held in Fulkerson v. Thompson:13

Whatever was before the Court, and is disposed of, is considered as finally settled. The
inferior court is bound by the judgment or decree as the law of the case, and must carry it
 into execution according to the mandate. The inferior court cannot vary it, or judicially
examine it for any other purpose than execution. It can give no other or further relief as to
any matter decided by the Supreme Court even where there is error apparent; or in any
manner intermeddle with it further than to execute the mandate and settle such matters as
have been remanded, not adjudicated by the Supreme Court….

The principles above stated are, we think, conclusively established by the authority of
adjudged cases. And any further departure from them would inevitably mar the harmony of
the whole judiciary system, bring its parts into conflict, and produce therein disorganization,
disorder, and incalculable mischief and confusion. Besides, any rule allowing the inferior
courts to disregard the adjudications of the Supreme Court, or to refuse or omit to carry them
into execution would be repugnant to the principles established by the constitution, and
therefore void.14

At this point, it is well to recall the factual context of Santiago as well as the pronouncement made by
the Court therein. Like petitioners in the instant case, in Santiago, Atty. Jesus Delfin, the People's
Initiative for Reforms, Modernization and Action (PIRMA), et al., invoked Section 2, Article XVII of
the Constitution as they filed with the COMELEC a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, By People's Initiative" (the Delfin petition). They asked the COMELEC to
issue an order fixing the time and date for signature gathering all over the country; causing the
necessary publications of said order and their petition in newspapers of general and local circulation
and instructing municipal election registrars in all regions all over the country and to assist
petitioners in establishing signing stations. Acting thereon, the COMELEC issued the order prayed
for.

Senator Miriam Santiago, et al. forthwith filed with this Court a petition for prohibition to enjoin the
COMELEC from implementing its order. The Court, speaking through Justice Hilario G. Davide, Jr.
(later Chief Justice), granted the petition as it declared:

1. RA 6735 "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative
on amendments to the Constitution is concerned";

2. COMELEC Resolution No. 230015 invalid insofar as it prescribed rules and regulations on the
conduct of initiative on amendments to the Constitution because the COMELEC is without authority
to promulgate the rules and regulations to implement the exercise of the right of the people to
directly propose amendments to the Constitution through the system of initiative; and

3. The Delfin petition insufficient as it did not contain the required number of signatures of registered
voters.

The Court concluded in Santiago that "the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system." The
dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered:

a) GRANTING the instant petition;

b) DECLARING RA 6735 inadequate to cover the system of initiative on amendments to the

Constitution, and to have failed to provide sufficient standard for subordinate legislation;
 c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to the
Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the Delfin petition (UND-
96-037).

The Temporary Restraining Order issued on December 18, 1996 is made permanent as
against the Commission on Elections, but is LIFTED as against private respondents.16

The Court reiterated its ruling in Santiago in another petition which was filed with the Court by
PIRMA and the spouses Alberto and Carmen Pedrosa (who were parties in Santiago) docketed
as PIRMA v. Commission on Elections.17 The said petitioners, undaunted by Santiago and claiming
to have gathered 5,793,213 signatures, filed a petition with the COMELEC praying, inter alia, that
COMELEC officers be ordered to verify all the signatures collected in behalf of the petition and, after
due hearing, that it (COMELEC) declare the petition sufficient for the purpose of scheduling a
plebiscite to amend the Constitution. Like the Delfin petition in Santiago, the PIRMA petition
proposed to submit to the people in a plebiscite the amendment to the Constitution on the lifting of
the term limits of elected officials.

The opinion of the minority that there was no doctrine enunciated by the Court in PIRMA has no
basis. The COMELEC, in its Resolution dated July 8, 1997, dismissed the PIRMA petition citing the
permanent restraining order issued against it by the Court in Santiago. PIRMA and the spouses
Pedrosa forthwith elevated the matter to the Court alleging grave abuse of discretion on the part of
the COMELEC in refusing to exercise jurisdiction over, and thereby dismissing, their petition for
initiative to amend the Constitution.

The Court dismissed outright, by a unanimous vote, the petition filed by PIRMA and the spouses
Albert Pedrosa. The Court declared that the COMELEC merely complied with the dispositions in the
decision of the Court in Santiago and, hence, cannot be held to have committed a grave abuse of its
discretion in dismissing the petition before it:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be
attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA
therein, it appearing that it only complied with the dispositions in the Decision of this Court in
G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.

The Court next considered the question of whether there was need to resolve the second
issue posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A.
6735. On this issue, the Chief Justice and six (6) other members of the Court, namely,
Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no
need to take it up. Vitug, J., agreed that there was no need for re-examination of said second
issue since the case a bar is not the proper vehicle for that purpose. Five (5) other members
of the Court, namely, Melo, Puno, Francisco, Hermosisima and Panganiban, JJ., opined that
there was need for such a re-examination. x x x

WHEREFORE, the petition is DISMISSED.18 (Underscoring supplied.)

In the present case, the Office of the Solicitor General (OSG) takes the side of petitioners and
argues that the COMELEC should not have applied the ruling in Santiago to the petition for initiative
because the permanent injunction therein referred only to the Delfin petition. The OSG buttresses
this argument by pointing out that the Temporary Restraining Order dated December 18, 1996 that
was made permanent in the dispositive portion referred only to the Delfin petition.

The OSG's attempt to isolate the dispositive portion from the body of the Court's decision
in Santiago is futile. It bears stressing that the dispositive portion must not be read separately but in
connection with the other portions of the decision of which it forms a part. To get to the true intent
and meaning of a decision, no specific portion thereof should be resorted to but the same must be
considered in its entirety. Hence, a resolution or ruling may and does appear in other parts of the
decision and not merely in the fallo thereof.19

The pronouncement in the body of the decision in Santiago permanently enjoining the COMELEC
"from entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to provide for the implementation of
the system" is thus as much a part of the Court's decision as its dispositive portion. The ruling of
this Court is of the nature of an in rem judgment barring any and all Filipinos from filing a
petition for initiative on amendments to the Constitution until a sufficient law shall have been
validly enacted. Clearly, the COMELEC, in denying due course to the present petition for initiative
on amendments to the Constitution conformably with the Court's ruling in Santiago did not commit
grave abuse of discretion. On the contrary, its actuation is in keeping with the salutary principle of
hierarchy of courts. For the Court to find the COMELEC to have abused its discretion when it
dismissed the amended petition based on the ruling of this Court in Santiago would be sheer judicial
apostasy.

As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme Court from whose decisions
all other courts should take their bearings."20 This truism applies with equal force to the COMELEC
as a quasi-judicial body for, after all, judicial decisions applying or interpreting laws or the
Constitution "assume the same authority as the statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria which must control the
actuations not only of those called upon to abide thereby but also of those duty bound to enforce
obedience thereto."21

Petitioners Cannot Ascribe

Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago

It is elementary that the opinion of the majority of the members of the Court, not the opinion of the
minority, prevails. As a corollary, the decision of the majority cannot be modified or reversed by the
minority of the members of the Court.

However, to eschew the binding effect of Santiago, petitioners argue, albeit unconvincingly, that the
Court's declaration therein on the inadequacy, incompleteness and insufficiency of RA 6735 to
implement the system of initiative to propose constitutional amendments did not constitute the
majority opinion. This contention is utterly baseless.

Santiago was concurred in, without any reservation, by eight Justices,22 or the majority of the
members of the Court, who actually took part in the deliberations thereon. On the other hand, five
Justices,23 while voting for the dismissal of the Delfin petition on the ground of insufficiency,
dissented from the majority opinion as they maintained the view that RA 6735 was sufficient to
implement the system of initiative.
Given that a clear majority of the members of the Court, eight Justices, concurred in the decision
in Santiago, the pronouncement therein that RA 6735 is "incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned"
constitutes a definitive ruling on the matter.

In the Resolution dated June 10, 1997, the motions for reconsideration of the Santiago decision
were denied with finality as only six Justices, or less than the majority, voted to grant the same. The
Resolution expressly stated that the motion for reconsideration failed "to persuade the requisite
majority of the Court to modify or reverse the Decision of 19 March 1977."24 In fine, the
pronouncement in Santiago as embodied in the Decision of March 19, 1997 remains the definitive
ruling on the matter.

It bears stressing that in PIRMA, petitioners prayed for the Court to resolve the issue posed by them
and to re-examine its ruling as regards RA 6735. By a vote of seven members of the Court, including
Justice Justo P. Torres, Jr. and Justice Jose C. Vitug, the Court voted that there was no need to
resolve the issue. Five members of the Court opined that there was a need for the re-examination of
said ruling. Thus, the pronouncement of the Court in Santiago remains the law of the case and
binding on petitioners.

If, as now claimed by the minorty, there was no doctrine enunciated by the Court in Santiago, the
Court should have resolved to set aside its original resolution dismissing the petition and to grant the
motion for reconsideration and the petition. But the Court did not. The Court positively and
unequivocally declared that the COMELEC merely followed the ruling of the Court in Santiago in
dismissing the petition before it. No less than Senior Justice Reynato S. Puno concurred with the
resolution of the Court. It behooved Justice Puno to dissent from the ruling of the Court on the
motion for reconsideration of petitioners precisely on the ground that there was no doctrine
enunciated by the Court in Santiago. He did not. Neither did Chief Justice Artemio V. Panganiban,
who was a member of the Court.

That RA 6735 has failed to validly implement the people's right to directly propose constitutional
amendments through the system of initiative had already been conclusively settled in Santiago as
well as in PIRMA. Heeding these decisions, several lawmakers, including no less than Solicitor
General Antonio Eduardo Nachura when he was then a member of the House of
Representatives,25 have filed separate bills to implement the system of initiative under Section 2,
Article XVII of the Constitution.

In the present Thirteenth (13th) Congress, at least seven (7) bills are pending. In the Senate, the
three (3) pending bills are: Senate Bill No. 119 entitled An Act Providing for People's Initiative to
Amend the Constitution introduced by Senator Luisa "Loi" P. Ejercito Estrada; Senate Bill No. 2189
entitled An Act Providing for People's Initiative to Amend the Constitution introduced by Senator
Miriam Defensor Santiago; and Senate Bill No. 2247 entitled An Act Providing for a System of
People's Initiative to Propose Amendments to the Constitution introduced by Senator Richard
Gordon.

In the House of Representatives, there are at least four (4) pending bills: House Bill No. 05281 filed
by Representative Carmen Cari, House Bill No. 05017 filed by Representative Imee Marcos, House
Bill No. 05025 filed by Representative Roberto Cajes, and House Bill No. 05026 filed by
Representative Edgardo Chatto. These House bills are similarly entitled An Act Providing for
People's Initiative to Amend the Constitution.

The respective explanatory notes of the said Senate and House bills uniformly recognize that there
is, to date, no law to govern the process by which constitutional amendments are introduced by the
people directly through the system of initiative. Ten (10) years after Santiago and absent the
occurrence of any compelling supervening event, i.e., passage of a law to implement the system of
initiative under Section 2, Article XVII of the Constitution, that would warrant the re-examination of
the ruling therein, it behooves the Court to apply to the present case the salutary and well-
recognized doctrine of stare decisis. As earlier shown, Congress and other government agencies
have, in fact, abided by Santiago. The Court can do no less with respect to its own ruling.

Contrary to the stance taken by petitioners, the validity or constitutionality of a law cannot be made
to depend on the individual opinions of the members who compose it – the Supreme Court, as an
institution, has already determined RA 6735 to be "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned" and
therefore the same remains to be so regardless of any change in the Court's composition.26 Indeed,
it is vital that there be stability in the courts in adhering to decisions deliberately made after ample
consideration. Parties should not be encouraged to seek re-examination of determined principles
and speculate on fluctuation of the law with every change in the expounders of it.27

Proposals to Revise the Constitution,

As in the Case of the Petitioners'
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments

Even granting arguendo the Court, in the present case, abandons its pronouncement
in Santiago and declares RA 6735, taken together with other extant laws, sufficient to implement the
system of initiative, still, the amended petition for initiative cannot prosper. Despite the denomination
of their petition, the proposals of petitioners to change the form of government from the present
bicameral-presidential to a unicameral-parliamentary system of government are actually for
the revision of the Constitution.

Petitioners propose to "amend" Articles VI and VII of the Constitution in this manner:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

"Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by law, to be
apportioned among the provinces, representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as
far as practicable, contiguous, compact and adjacent territory, and each province must have
at least one member.

"(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least
twenty-five years old on the day of the election, a resident of his district for at least one year
prior thereto, and shall be elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the party-list system which
shall be provided for by law and whose number shall be equal to twenty per centum of the
total membership coming from the parliamentary districts."
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as
follows:

"Section 1. There shall be a President who shall be the Head of State. The executive power
shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime
Minister shall be elected by a majority of all the Members of Parliament from among
themselves. He shall be responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a

unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of
their term at noon on the thirtieth day of June 2010 and shall continue to exercise their
powers under the 1987 Constitution unless impeached by a vote of two thirds of all the
members of the interim parliament.,

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death,
permanent disability, resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers and responsibilities of
Prime Minister under Article VII as amended.

Section 2. "Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution
which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary system of government,
in which case, they shall be amended to conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to "Congress," "Senate,"
"House of Representatives" and "House of Congress," "Senator[s] or "Member[s] of the
House of Representatives" and "House of Congress" shall be changed to read "Parliament";
that any and all references therein to "Member[s] of the House of Representatives" shall be
changed to read as "Member[s] of Parliament" and any and all references to the "President"
and or "Acting President" shall be changed to read "Prime Minister."

Section 3. "Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are
hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they
shall be deemed amended so as to conform to a unicameral Parliamentary System of
government; provided, however, that any and all references therein to "Congress," "Senate,"
"House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of Congress," "Senator[s]" or
"Member[s] of the House of Parliament" and any and all references to the "President" and of
"Acting President" shall be changed to read "Prime Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified. It shall be composed of the incumbent Members of the
 Senate and the House of Representatives and the incumbent Members of the Cabinet who
are heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon
of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim Parliament and shall preside over its session
for the election of the interim Prime Minister and until the Speaker shall have been elected by
a majority vote of all the members of the interim Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of
the thirtieth day of June 2010.

(4) Within forty-five days from ratification of these amendments, the interim Parliament shall
convene to propose amendments to, or revisions of, this Constitution consistent with the
principles of local autonomy, decentralization and a strong bureaucracy.

"Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from
among the members of the interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim Prime Minister shall oversee
the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President."

(2) The interim Parliament shall provide for the election of the members of Parliament, which
shall be synchronized and held simultaneously with the election of all local government
officials. [Thereafter, the Vice-President, as Member of Parliament, shall immediately
convene the Parliament and shall initially preside over its session for the purpose of electing
the Prime Minister, who shall be elected by a majority vote of all its members, from among
themselves.] The duly-elected Prime Minister shall continue to exercise and perform the
powers, duties and responsibilities of the interim Prime Minister until the expiration of the
term of the incumbent President and Vice President.28

Petitioners claim that the required number of signatures of registered voters have been complied
with, i.e., the signatories to the petition constitute twelve percent (12%) of all the registered voters in
the country, wherein each legislative district is represented by at least three percent (3%) of all the
registered voters therein. Certifications allegedly executed by the respective COMELEC Election
Registrars of each municipality and city verifying these signatures were attached to the petition for
initiative. The verification was allegedly done on the basis of the list of registered voters contained in
the official COMELEC list used in the immediately preceding election.

The proposition, as formulated by petitioners, to be submitted to the Filipino people in a plebiscite to

be called for the said purpose reads:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987

CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
FROM ONE SYSTEM TO THE OTHER?29

According to petitioners, the proposed amendment of Articles VI and VII would effect a more
efficient, more economical and more responsive government. The parliamentary system would
allegedly ensure harmony between the legislative and executive branches of government, promote
greater consensus, and provide faster and more decisive governmental action.
Sections 1 and 2 of Article XVII pertinently read:

Article XVII

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

SECTION 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once
every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

It can be readily gleaned that the above provisions set forth different modes and procedures for
proposals for the amendment and revision of the Constitution:

1. Under Section 1, Article XVII, any amendment to, or revision of, the Constitution may be
proposed by –

a. Congress, upon a vote of three-fourths of all its members; or

b. A constitutional convention.

2. Under Section 2, Article XVII, amendments to the Constitution may be likewise directly
proposed by the people through initiative.

The framers of the Constitution deliberately adopted the terms "amendment" and "revision" and
provided for their respective modes and procedures for effecting changes of the Constitution fully
cognizant of the distinction between the two concepts. Commissioner Jose E. Suarez, the Chairman
of the Committee on Amendments and Transitory Provisions, explained:

MR. SUAREZ. One more point, and we will be through.

We mentioned the possible use of only one term and that is, "amendment." However, the
Committee finally agreed to use the terms – "amendment" or "revision" when our attention
was called by the honorable Vice-President to the substantial difference in the connotation
and significance between the said terms. As a result of our research, we came up with the
observations made in the famous – or notorious – Javellana doctrine, particularly the
decision rendered by Honorable Justice Makasiar, wherein he made the following distinction
between "amendment" and "revision" of an existing Constitution: "Revision" may involve a
rewriting of the whole Constitution. On the other hand, the act of amending a constitution
envisages a change of specific provisions only. The intention of an act to amend is not the
change of the entire Constitution, but only the improvement of specific parts or the addition of
provisions deemed essential as a consequence of new conditions or the elimination of parts
already considered obsolete or unresponsive to the needs of the times.
 The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely
new fundamental Charter embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be
employed in the formulation of the Article governing amendments or revisions to the new
Constitution.30

Further, the framers of the Constitution deliberately omitted the term "revision" in Section 2, Article
XVII of the Constitution because it was their intention to reserve the power to propose a revision of
the Constitution to Congress or the constitutional convention. Stated in another manner, it was their
manifest intent that revision thereof shall not be undertaken through the system of initiative. Instead,
the revision of the Constitution shall be done either by Congress or by a constitutional convention.

It is significant to note that, originally, the provision on the system of initiative was included in Section
1 of the draft Article on Amendment or Revision proposed by the Committee on Amendments and
Transitory Provisions. The original draft provided:

SEC. 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article __ Section __ of
the Constitution.31

However, after deliberations and interpellations, the members of the Commission agreed to remove
the provision on the system of initiative from Section 1 and, instead, put it under a separate
provision, Section 2. It was explained that the removal of the provision on initiative from the other
"traditional modes" of changing the Constitution was precisely to limit the former (system of initiative)
to amendments to the Constitution. It was emphasized that the system of initiative should not extend
to revision.

MR. SUAREZ. Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete Committee Report
No. 7 which embodies the proposed provision governing the matter of initiative. This is now
covered by Section 2 of the complete committee report. With the permission of the Members,
may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.

This completes the blanks appearing in the original Committee Report No. 7. This proposal
was suggested on the theory that this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee members felt that this
system of initiative should be limited to amendments to the Constitution and should not
 extend to the revision of the entire Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or Revision. x x x32

The intention to exclude "revision" of the Constitution as a mode that may be undertaken through the
system of initiative was reiterated and made clear by Commissioner Suarez in response to a
suggestion of Commissioner Felicitas Aquino:

MR. SUAREZ. Section 2 must be interpreted together with the provisions of Section 4,
except that in Section 4, as it is presently drafted, there is no take-off date for the 60-day and
90-day periods.

MS. AQUINO. Yes. In other words, Section 2 is another alternative mode of proposing
amendments to the Constitution which would further require the process of submitting it in a
plebiscite, in which case it is not self-executing.

MR. SUAREZ. No, not unless we settle and determine the take-off period.

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative
as a separate section in the Article on Amendment. Would the sponsor be amenable to
accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of
Section 1, instead of setting it up as another separate section as if it were a self-executing
provision?

MR SUAREZ. We would be amenable except that, as we clarified a while ago, this process
of initiative is limited to the matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense conveyed by the
Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of
modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of
initiation to amend, which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned by the Committee.33

Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made the clarification with
respect to the observation of Commissioner Regalado Maambong:

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1

refers to "amendments." Does it not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words "amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision."34

After several amendments, the Commission voted in favor of the following wording of Section 2:

AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY

THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF
 THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION
SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF

THE EXERCISE OF THIS RIGHT.

Sections 1 and 2, Article XVII as eventually worded read:

Article XVII

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(3) The Congress, upon a vote of three-fourths of all its Members; or

(4) A constitutional convention.

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative, upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once
every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

The final text of Article XVII on Amendments or Revisions clearly makes a substantial differentiation
not only between the two terms but also between two procedures and their respective fields of
application. Ineluctably, the system of initiative under Section 2, Article XVII as a mode of effecting
changes in the Constitution is strictly limited to amendments – not to a revision – thereof.

As opined earlier, the framers of the Constitution, in providing for "amendment" and "revision" as
different modes of changing the fundamental law, were cognizant of the distinction between the two
terms. They particularly relied on the distinction made by Justice Felix Antonio in his concurring
opinion in Javellana v. Executive Secretary,35 the controversial decision which gave imprimatur to the
1973 Constitution of former President Ferdinand E. Marcos, as follows:

There is clearly a distinction between revision and amendment of an existing constitution.

Revision may involve a rewriting of the whole constitution. The act of amending a
constitution, on the other hand, envisages a change of only specific provisions. The intention
of an act to amend is not the change of the entire constitution, but only the improvement of
specific parts of the existing constitution of the addition of provisions deemed essential as a
consequence of new conditions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times. The 1973 Constitution is not a mere amendment to
the 1935 Constitution. It is a completely new fundamental charter embodying new political,
social and economic concepts.36

Other elucidation on the distinction between "amendment" and "revision" is enlightening. For
example, Dean Vicente G. Sinco, an eminent authority on political law, distinguished the two terms
in this manner:
 Strictly speaking, the act of revising a constitution involves alterations of different portions of
the entire document. It may result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important provisions. But whatever results
the revisions may produce, the factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to determine which one should be
altered or suppressed or whether the whole document should be replaced with an entirely
new one.

The act of amending a constitution, on the other hand, envisages a change of only a few
specific provisions. The intention of an act to amend is not to consider the advisability of
changing the entire constitution or of considering that possibility. The intention rather is to
improve the specific parts of the existing constitution or to add to it provisions deemed
essential on account of changed conditions or to suppress portions of it that seemed
obsolete, or dangerous, or misleading in their effect.37

In the United States, the Supreme Court of Georgia in Wheeler v. Board of Trustees38 had the
occasion to make the distinction between the two terms with respect to Ga.L. 1945, an instrument
which "amended" the 1877 Constitution of Georgia. It explained the term "amendment:"

"Amendment" of a statute implies its survival and not destruction. It repeals or changes some
provision, or adds something thereto. A law is amended when it is in whole or in part
permitted to remain, and something is added to or taken from it, or it is in some way changed
or altered to make it more complete or perfect, or to fit it the better to accomplish the object
or purpose for which it was made, or some other object or purpose.39

On the other hand, the term "revision" was explained by the said US appellate court:

x x x When a house is completely demolished and another is erected on the same location,
do you have a changed, repaired and altered house, or do you have a new house? Some of
the materials contained in the old house may be used again, some of the rooms may be
constructed the same, but this does not alter the fact that you have altogether another or a
new house. We conclude that the instrument as contained in Ga.L. 1945, pp. 8 to 89,
inclusive, is not an amendment to the constitution of 1877; but on the contrary it is a
completely revised or new constitution.40

Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional Commission, expounded on
the distinction between the two terms thus:

An amendment envisages an alteration of one or a few specific and separable provisions.

The guiding original intention of an amendment is to improve specific parts or to add new
provisions deemed necessary to meet new conditions or to suppress specific portions that
may have become obsolete or that are judged to be dangerous. In revision, however, the
guiding original intention and plan contemplate a re-examination of the entire document – or
of provisions of the document (which have overall implications for the entire document or for
the fundamental philosophical underpinnings of the document) – to determine how and to
what extent it should be altered. Thus, for instance, a switch from the presidential system to
a parliamentary system would be a revision because of its overall impact on the entire
constitutional structure. So would a switch from a bicameral system to a unicameral system
because of its effect on other important provisions of the Constitution.
 It is thus clear that what distinguishes revision from amendment is not the quantum of
change in the document. Rather, it is the fundamental qualitative alteration that effects
revision. Hence, I must reject the puerile argument that the use of the plural form of
"amendments" means that a revision can be achieved by the introduction of a multiplicity of
amendments!41

Given that revision necessarily entails a more complex, substantial and far-reaching effects on the
Constitution, the framers thereof wisely withheld the said mode from the system of initiative. It should
be recalled that it took the framers of the present Constitution four months from June 2, 1986 until
October 15, 1986 to come up with the draft Constitution which, as described by the venerable
Justice Cecilia Muñoz Palma, the President of the Constitutional Commission of 1986, "gradually
and painstakingly took shape through the crucible of sustained sometimes passionate and often
exhilarating debates that intersected all dimensions of the national life."42

Evidently, the framers of the Constitution believed that a revision thereof should, in like manner, be a
product of the same extensive and intensive study and debates. Consequently, while providing for a
system of initiative where the people would directly propose amendments to the Constitution, they
entrusted the formidable task of its revision to a deliberative body, the Congress or Constituent
Assembly.

The Constitution is the fundamental law of the state, containing the principles upon which the
government is founded, and regulating the division of sovereign powers, directing to what persons
each of those powers is to be confided and the manner in which it is to be exercised.43 The
Philippines has followed the American constitutional legal system in the sense that the
term constitution is given a more restricted meaning, i.e., as a written organic instrument, under
which governmental powers are both conferred and circumscribed.44

The Constitution received its force from the express will of the people. An overwhelming
16,622,111, out of 21,785,216 votes cast during the plebiscite, or 76.30% ratified the present
Constitution on February 2, 1987.45 In expressing that will, the Filipino people have incorporated
therein the method and manner by which the same can be amended and revised, and when the
electorate have incorporated into the fundamental law the particular manner in which the same may
be altered or changed, then any course which disregards that express will is a direct violation of the
fundamental law.46

Further, these provisions having been incorporated in the Constitution, where the validity of a
constitutional amendment or revision depends upon whether such provisions have been complied
with, such question presents for consideration and determination a judicial question, and the courts
are the only tribunals vested with power under the Constitution to determine such question.47

Earlier, it was mentioned that Article XVII, by the use of the terms "amendment" and "revision,"
clearly makes a differentiation not only between the two terms but also between two procedures and
their respective fields of application. On this point, the case of McFadden v. Jordan48 is instructive. In
that case, a "purported initiative amendment" (referred to as the proposed measure) to the State
Constitution of California, then being proposed to be submitted to the electors for ratification, was
sought to be enjoined. The proposed measure, denominated as "California Bill of Rights," comprised
a single new article with some 208 subsections which would repeal or substantially alter at least 15
of the 25 articles of the California State Constitution and add at least four new topics. Among the
likely effects of the proposed measure were to curtail legislative and judicial functions, legalize
gaming, completely revise the taxation system and reduce the powers of cities, counties and courts.
The proposed measure also included diverse matters as ministers, mines, civic centers, liquor
control and naturopaths.
The Supreme Court of California enjoined the submission of the proposed measure to the electors
for ratification because it was not an "amendment" but a "revision" which could only be proposed by
a convention. It held that from an examination of the proposed measure itself, considered in relation
to the terms of the California State Constitution, it was clear that the proposed initiative enactment
amounted substantially to an attempted revision, rather than amendment, thereof; and that inasmuch
as the California State Constitution specifies (Article XVIII §2 thereof) that it may be revised by
means of constitutional convention but does not provide for revision by initiative measure, the
submission of the proposed measure to the electorate for ratification must be enjoined.

As piercingly enunciated by the California State Supreme Court in McFadden, the differentiation
required (between amendment and revision) is not merely between two words; more accurately it is
between two procedures and between their respective fields of application. Each procedure, if we
follow elementary principles of statutory construction, must be understood to have a substantial field
of application, not to be a mere alternative procedure in the same field. Each of the two words, then,
must be understood to denote, respectively, not only a procedure but also a field of application
appropriate to its procedure.49

Provisions regulating the time and mode of effecting organic changes are in the nature of safety-
valves – they must not be so adjusted as to discharge their peculiar function with too great facility,
lest they become the ordinary escape-pipes of party passion; nor, on the other hand, must they
discharge it with such difficulty that the force needed to induce action is sufficient also to explode the
machine. Hence, the problem of the Constitution maker is, in this particular, one of the most difficult
in our whole system, to reconcile the requisites for progress with the requisites for safety.50

Like in McFadden, the present petition for initiative on amendments to the Constitution is, despite its
denomination, one for its revision. It purports to seek the amendment only of Articles VI and VII of
the Constitution as well as to provide transitory provisions. However, as will be shown shortly, the
amendment of these two provisions will necessarily affect other numerous provisions of the
Constitution particularly those pertaining to the specific powers of Congress and the President.
These powers would have to be transferred to the Parliament and the Prime Minister and/or
President, as the case may be. More than one hundred (100) sections will be affected or altered
thereby:

1. Section 19 of Article III (Bill of Rights) on the power of Congress to impose the death
penalty for compelling reasons involving heinous crimes;

2. Section 2 of Article V (Suffrage) on the power of Congress to provide for securing the
secrecy and sanctity of the ballot as well as a system for absentee voting;

3. All 32 Sections of Article VI on the Legislative Department;

4. All 23 Sections of Article VII on the Executive Department;

5. The following Sections of Article VIII (Judicial Department):

- Section 2 on power of Congress to define, prescribe and apportion the jurisdiction

of various courts;

- Section 7 on the power of Congress to prescribe the qualifications of judges of

lower courts;
 - Section 8 on the composition of Judicial Bar Council (JBC) which includes
representatives of Congress as ex officio members and on the power of the
President to appoint the regular members of the JBC;

- Section 9 on the power of the President to appoint the members of the Supreme
Court and judges of lower courts;

- Section 16 on duty of Supreme Court to make annual report to the President and
Congress.

6. The following Sections of Article IX (Constitutional Commissions);

- (B) Section 3 on duty of Civil Service Commission to make annual report to the
President and Congress;

- (B) Section 5 on power of Congress to provide by law for the standardization of

compensation of government officials;

- (B) Section 8 which provides in part that "no public officer shall accept, without the
consent of Congress, any present, emolument, etc. x x x"

- (C) Section 1 on the power of the President to appoint the Chairman and
Commissioners of the Commission on Elections with the consent of the Commission
on Appointments;

- (C) Section 2 (7) on the power of the COMELEC to recommend to Congress

measures to minimize election spending x x x;

- (C) Section 2 (8) on the duty of the COMELEC to recommend to the President the
removal of any officer or employee it has deputized, or the imposition of any other
disciplinary action x x x;

- (C) Section 2 (9) on the duty of the COMELEC to submit to the President and
Congress a report on the conduct of election, plebiscite, etc.;

- (C) Section 5 on the power of the President, with the favorable recommendation of
the COMELEC, to grant pardon, amnesty, parole, or suspension of sentence for
violation of election laws, rules and regulations;

- (C) Section 7 which recognizes as valid votes cast in favor of organization

registered under party-list system;

- (C) Section 8 on political parties, organizations or coalitions under the party-list

system;

- (D) Section 1 (2) on the power of the President to appoint the Chairman and
Commissioners of the Commission on Audit (COA) with the consent of the
Commission of Appointments;

- Section 4 on duty of the COA to make annual report to the President and Congress.
7. The following Sections of Article X (Local Government):

- Section 3 on the power of Congress to enact a local government code;

- Section 4 on the power of the President to exercise general supervision over local
government units (LGUs);

- Section 5 on the power of LGUs to create their own sources of income x x x,

subject to such guidelines as Congress may provide;

- Section 11 on the power of Congress to create special metropolitan political

subdivisions;

- Section 14 on the power of the President to provide for regional development

councils x x x;

- Section 16 on the power of the President to exercise general supervision over

autonomous regions;

- Section 18 on the power of Congress to enact organic act for each autonomous
region as well as the power of the President to appoint the representatives to the
regional consultative commission;

- Section 19 on the duty of the first Congress elected under the Constitution to pass
the organic act for autonomous regions in Muslim Mindanao and the Cordilleras.

8. The following Sections of Article XI (Accountability of Public Officers):

- Section 2 on the impeachable officers (President, Vice-President, etc.);

- Section 3 on impeachment proceedings (exclusive power of the House to initiate

complaint and sole power of the Senate to try and decide impeachment cases);

- Section 9 on the power of the President to appoint the Ombudsman and his
deputies;

- Section 16 which provides in part that "x x x no loans or guaranty shall be granted
to the President, Vice-President, etc.

- Section 17 on mandatory disclosure of assets and liabilities by public officials

including the President, Vice-President, etc.

9. The following Sections of Article XII (National Economy and Patrimony):

- Section 2 on the power of Congress to allow, by law, small-scale utilization of

natural resources and power of the President to enter into agreements with foreign-
owned corporations and duty to notify Congress of every contract;

- Section 3 on the power of Congress to determine size of lands of public domain;

 - Section 4 on the power of Congress to determine specific limits of forest lands;

- Section 5 on the power of Congress to provide for applicability of customary laws;

- Section 9 on the power of Congress to establish an independent economic and

planning agency to be headed by the President;

- Section 10 on the power of Congress to reserve to Filipino citizens or domestic

corporations(at least 60% Filipino-owned) certain areas of investment;

- Section 11 on the sole power of Congress to grant franchise for public utilities;

- Section 15 on the power of Congress to create an agency to promote viability of

cooperatives;

- Section 16 which provides that Congress shall not, except by general law, form
private corporations;

- Section 17 on the salaries of the President, Vice-President, etc. and the power of
Congress to adjust the same;

- Section 20 on the power of Congress to establish central monetary authority.

10. The following Sections of Article XIII (Social Justice and Human Rights):

- Section 1 on the mandate of Congress to give highest priority to enactment of

measures that protect and enhance the right of people x x x

- Section 4 on the power of Congress to prescribe retention limits in agrarian reform;

- Section 18 (6) on the duty of the Commission on Human Rights to recommend to

Congress effective measures to promote human rights;

- Section 19 on the power of Congress to provide for other cases to fall within the
jurisdiction of the Commission on Human Rights.

11. The following Sections of Article XIV (Education, Science and Technology, etc.):

- Section 4 on the power of Congress to increase Filipino equity participation in

educational institutions;

- Section 6 which provides that subject to law and as Congress may provide, the
Government shall sustain the use of Filipino as medium of official communication;

- Section 9 on the power of Congress to establish a national language commission;

- Section 11 on the power of Congress to provide for incentives to promote scientific

research.

12. The following Sections of Article XVI (General Provisions):

 - Section 2 on the power of Congress to adopt new name for the country, new
national anthem, etc.;

- Section 5 (7) on the tour of duty of the Chief of Staff which may be extended by the
President in times of war or national emergency declared by Congress;

- Section 11 on the power of Congress to regulate or prohibit monopolies in mass

media;

- Section 12 on the power of Congress to create consultative body to advise the

President on indigenous cultural communities.

13. The following Sections of Article XVII (Amendments or Revisions):

- Section 1 on the amendment or revision of Constitution by Congress;

- Section 2 on the duty of Congress to provide for the implementation of the system
of initiative;

- Section 3 on the power of Congress to call constitutional convention to amend or

revise the Constitution.

14. All 27 Sections of Article XVIII (Transitory Provisions).

The foregoing enumeration negates the claim that "the big bulk of the 1987 Constitution will not be
affected."51Petitioners' proposition, while purportedly seeking to amend only Articles VI and VII of the
Constitution and providing transitory provisions, will, in fact, affect, alter, replace or repeal other
numerous articles and sections thereof. More than the quantitative effects, however, the revisory
character of petitioners' proposition is apparent from the qualitative effects it will have on the
fundamental law.

I am not impervious to the commentary of Dean Vicente G. Sinco that the revision of a constitution,
in its strict sense, refers to a consideration of the entire constitution and the procedure for effecting
such change; while amendment refers only to particular provisions to be added to or to be altered in
a constitution.52

For clarity and accuracy, however, it is necessary to reiterate below Dean Sinco's more
comprehensive differentiation of the terms:

Strictly speaking, the act of revising a constitution involves alterations of different portions of
the entire document. It may result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important provisions. But whatever results
the revisions may produce, the factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to determine which one should be
altered or suppressed or whether the whole document should be replaced with an entirely
new one.

The act of amending a constitution, on the other hand, envisages a change of only a few
specific provisions. The intention of an act to amend is not to consider the advisability of
changing the entire constitution or of considering that possibility. The intention rather is to
 improve the specific parts of the existing constitution or to add to it provisions deemed
essential on account of changed conditions or to suppress portions of it that seemed
obsolete, or dangerous, or misleading in their effect.53

A change in the form of government from bicameral-presidential to unicameral-parliamentary,

following the above distinction, entails a revision of the Constitution as it will involve "alteration of
different portions of the entire document" and "may result in the rewriting of the whole constitution, or
the greater portion of it, or perhaps only some of its important provisions."

More importantly, such shift in the form of government will, without doubt, fundamentally change the
basic plan and substance of the present Constitution. The tripartite system ordained by our
fundamental law divides governmental powers into three distinct but co-equal branches: the
legislative, executive and judicial. Legislative power, vested in Congress which is a bicameral body
consisting of the House of Representatives and the Senate, is the power to make laws and to alter
them at discretion. Executive power, vested in the President who is directly elected by the people, is
the power to see that the laws are duly executed and enforced. Judicial power, vested in the
Supreme Court and the lower courts, is the power to construe and apply the law when controversies
arise concerning what has been done or omitted under it. This separation of powers furnishes a
system of checks and balances which guards against the establishment of an arbitrary or tyrannical
government.

Under a unicameral-parliamentary system, however, the tripartite separation of power is dissolved

as there is a fusion between the executive and legislative powers. Essentially, the President
becomes a mere "symbolic head of State" while the Prime Minister becomes the head of
government who is elected, not by direct vote of the people, but by the members of the Parliament.
The Parliament is a unicameral body whose members are elected by legislative districts. The Prime
Minister, as head of government, does not have a fixed term of office and may only be removed by a
vote of confidence of the Parliament. Under this form of government, the system of checks and
balances is emasculated.

Considering the encompassing scope and depth of the changes that would be effected, not to
mention that the Constitution's basic plan and substance of a tripartite system of government and the
principle of separation of powers underlying the same would be altered, if not entirely destroyed,
there can be no other conclusion than that the proposition of petitioners Lambino, et al. would
constitute a revision of the Constitution rather than an amendment or "such an addition or change
within the lines of the original instrument as will effect an improvement or better carry out the
purpose for which it was framed."54 As has been shown, the effect of the adoption of the petitioners'
proposition, rather than to "within the lines of the original instrument" constitute "an improvement or
better carry out the purpose for which it was framed," is to "substantially alter the purpose and to
attain objectives clearly beyond the lines of the Constitution as now cast."55

To paraphrase McFadden, petitioners' contention that any change less than a total one is
amendatory would reduce to the rubble of absurdity the bulwark so carefully erected and preserved.
A case might, conceivably, be presented where the question would be occasion to undertake to
define with nicety the line of demarcation; but we have no case or occasion here.

As succinctly by Fr. Joaquin Bernas, "a switch from the presidential system to a parliamentary
system would be a revision because of its overall impact on the entire constitutional structure. So
would a switch from a bicameral system to a unicameral system because of its effect on other
important provisions of the Constitution. It is thus clear that what distinguishes revision from
amendment is not the quantum of change in the document. Rather, it is the fundamental qualitative
alteration that effects revision."56
The petition for initiative on amendments to the Constitution filed by petitioners Lambino, et al., being
in truth and in fact a proposal for the revision thereof, is barred from the system of initiative upon any
legally permissible construction of Section 2, Article XVII of the Constitution.

The Petition for Initiative on

Amendments to the Constitution
is, on its Face, Insufficient in
Form and Substance

Again, even granting arguendo RA 6735 is declared sufficient to implement the system of initiative
and that COMELEC Resolution No. 2300, as it prescribed rules and regulations on the conduct of
initiative on amendments to the Constitution, is valid, still, the petition for initiative on amendments to
the Constitution must be dismissed for being insufficient in form and substance.

Section 5 of RA 6735 requires that a petition for initiative on the Constitution must state the
following:

1. Contents or text of the proposed law sought to be enacted, approved or rejected,

amended or repealed, as the case may be;

2. The proposition;

3. The reason or reasons therefor;

4. That it is not one of the exceptions provided herein;

5. Signatures of the petitioners or registered voters; and

6. An abstract or summary proposition in not more than one hundred (100) words which shall
be legibly written or printed at the top of every page of the petition.

Section 7 thereof requires that the signatures be verified in this wise:

SEC. 7. Verification of Signatures. – The Election Registrar shall verify the signatures on the
basis of the registry list of voters, voters' affidavits and voters' identification cards used in the
immediately preceding election.

The law mandates upon the election registrar to personally verify the signatures. This is a solemn
and important duty imposed on the election registrar which he cannot delegate to any other person,
even to barangay officials. Hence, a verification of signatures made by persons other than the
election registrars has no legal effect.

In patent violation of the law, several certifications submitted by petitioners showed that the
verification of signatures was made, not by the election registrars, but by barangay officials. For
example, the certification of the election officer in Lumbatan, Lanao del Sur reads in full:

LOCAL ELECTION OFFICER'S CERTIFICATION57

THIS IS TO CERTIFY that based on the verifications made by the Barangay Officials in this
City/Municipality, as attested to by two (2) witnesses from the same Barangays, which is part
of the 2nd Legislative District of the Province of Lanao del Sur, the names appearing on the
 attached signature sheets relative to the proposed initiative on Amendments to the 1987
Constitution, are those of bonafide resident of the said Barangays and correspond to the
names found in the official list of registered voters of the Commission on Elections and/or
voters' affidavit and/or voters' identification cards.

It is further certified that the total number of signatures of the registered voters for the
City/Municipality of LUMBATAN, LANAO DEL SUR as appearing in the affixed signatures
sheets is ONE THOUSAND ONE HUNDRED EIGHTY (1,180).

April 2, 2006

IBRAHIM M. MACADATO
Election Officer

(Underscoring supplied)

The ineffective verification in almost all the legislative districts in the Autonomous Region of Muslim
Mindanao (ARMM) alone is shown by the certifications, similarly worded as above-quoted, of the
election registrars of Buldon, Maguindanao;58 Cotabato City (Special Province);59 Datu Odin Sinsuat,
Maguindanao;60 Matanog, Maguindanao;61 Parang, Maguindanao;62 Kabantalan,
Maguindanao;63 Upi, Maguinadano;64 Barira, Maguindanao;65 Sultan, Mastura;66 Ampatuan,
Maguindanao;67 Buluan, Maguindanao;68 Datu Paglas, Maguindanao;69 Datu Piang,
Maguindanao;70 Shariff Aguak, Maguindanao;71 Pagalungan, Maguindanao;72Talayan,
Maguindanao;73 Gen. S.K. Pendatun, Maguindanao;74 Mamasapano, Maguindanao;75 Talitay,
Maguindanao;76 Guindulungan, Maguindanao;77 Datu Saudi Ampatuan, Maguindanao;78 Datu Unsay,
Maguindanao;79 Pagagawan, Maguindanao;80 Rajah Buayan, Maguindanao;81 Indanan, Sulu;82 Jolo,
Sulu;83Maimbung, Sulu;84 Hadji Panglima, Sulu;85 Pangutaran, Sulu;86 Parang, Sulu;87 Kalingalan
Caluang, Sulu;88 Luuk, Sulu;89 Panamao, Sulu;90 Pata, Sulu;91 Siasi, Sulu;92 Tapul, Sulu;93 Panglima
Estino, Sulu;94 Lugus, Sulu;95 and Pandami, Sulu. 96

Section 7 of RA 6735 is clear that the verification of signatures shall be done by the election
registrar, and by no one else, including the barangay officials. The foregoing certifications submitted
by petitioners, instead of aiding their cause, justify the outright dismissal of their petition for initiative.
Because of the illegal verifications made by barangay officials in the above-mentioned legislative
districts, it necessarily follows that the petition for initiative has failed to comply with the requisite
number of signatures, i.e., at least twelve percent (12%) of the total number of registered voters, of
which every legislative district must be represented by at least three percent (3%) of the registered
voters therein.

Petitioners cannot disclaim the veracity of these damaging certifications because they themselves
submitted the same to the COMELEC and to the Court in the present case to support their
contention that the requirements of RA 6735 had been complied with and that their petition for
initiative is on its face sufficient in form and substance. They are in the nature of judicial admissions
which are conclusive and binding on petitioners.97 This being the case, the Court must forthwith
order the dismissal of the petition for initiative for being, on its face, insufficient in form and
substance. The Court should make the adjudication entailed by the facts here and now, without
further proceedings, as it has done in other cases.98

It is argued by petitioners that, assuming arguendo that the COMELEC is correct in relying
on Santiago that RA 6735 is inadequate to cover initiative to the Constitution, this cannot be used to
legitimize its refusal to heed the people's will. The fact that there is no enabling law should not
prejudice the right of the sovereign people to propose amendments to the Constitution, which right
has already been exercised by 6,327,952 voters. The collective and resounding act of the particles
of sovereignty must not be set aside. Hence, the COMELEC should be ordered to comply with
Section 4, Article XVII of the 1987 Constitution via a writ of mandamus. The submission of
petitioners, however, is unpersuasive.

Mandamus is a proper recourse for citizens who act to enforce a public right and to compel the
persons of a public duty most especially when mandated by the Constitution.99 However, under
Section 3, Rule 65 of the 1997 Rules of Court, for a petition for mandamus to prosper, it must be
shown that the subject of the petition is a ministerial act or duty and not purely discretionary on the
part of the board, officer or person, and that petitioner has a well-defined, clear and certain right to
warrant the grant thereof. A purely ministerial act or duty is one which an officer or tribunal performs
in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority,
without regard to or the exercise of his own judgment upon the propriety or impropriety of the act
done. If the law imposes a duty upon a public official and gives him the right to decide how or when
the duty should be performed, such duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the exercise of an official discretion nor
judgment.100

To stress, in a petition for mandamus, petitioner must show a well defined, clear and certain right to
warrant the grant thereof.101 In this case, petitioners failed to establish their right to a writ
of mandamus as shown by the foregoing disquisitions.

Remand of the Case to the

COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300

The dissenting opinion posits that the issue of whether or not the petition for initiative has complied
with the requisite number of signatures of at least twelve percent (12%) of the total number of
registered voters, of which every legislative district must be represented by at least three percent
(3%) of the registered voters therein, involves contentious facts. The dissenting opinion cites the
petitioners' claim that they have complied with the same while the oppositors-intervenors have
vigorously refuted this claim by alleging, inter alia, that the signatures were not properly verified or
were not verified at all. Other oppositors-intervenors have alleged that the signatories did not fully
understand what they have signed as they were misled into signing the signature sheets.

According to the dissenting opinion, the sufficiency of the petition for initiative and its compliance
with the requirements of RA 6735 on initiative and its implementing rules is a question that should be
resolved by the COMELEC at the first instance. It thus remands the case to the COMELEC for
further proceedings.

To my mind, the remand of the case to the COMELEC is not warranted. There is nothing in RA
6735, as well as in COMELEC Resolution No. 2300, granting that it is valid to implement the former
statute, that authorizes the COMELEC to conduct any kind of hearing, whether full-blown or trial-type
hearing, summary hearing or administrative hearing, on a petition for initiative.

Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative shall be conducted under
the control and supervision of the Commission in accordance with Article III hereof." Pertinently,
Sections 30, 31 and 32 of Article III of the said implementing rules provide as follows:

Sec. 30. Verification of signatures. – The Election Registrar shall verify the signatures on the
basis of the registry list of voters, voters' affidavits and voters' identification cards used in the
immediately preceding election.
 Sec. 31. Determination by the Commission. – The Commission shall act on the findings of
the sufficiency or insufficiency of the petition for initiative or referendum.

If it should appear that the required number of signatures has not been obtained, the petition
shall be deemed defeated and the Commission shall issue a declaration to that effect.

If it should appear that the required number of signatures has been obtained, the
Commission shall set the initiative or referendum in accordance with the succeeding
sections.

Sec. 32. Appeal. – The decision of the Commission on the findings of the sufficiency and
insufficiency of the petition for initiative or referendum may be appealed to the Supreme
Court within thirty (30) days from notice hereof.

Clearly, following the foregoing procedural rules, the COMELEC is not authorized to conduct any
kind of hearing to receive any evidence for or against the sufficiency of the petition for initiative.
Rather, the foregoing rules require of the COMELEC to determine the sufficiency or insufficiency of
the petition for initiative on its face. And it has already been shown, by the annexes submitted by the
petitioners themselves, their petition is, on its face, insufficient in form and substance. The remand of
the case to the COMELEC for reception of evidence of the parties on the contentious factual issues
is, in effect, an amendment of the abovequoted rules of the COMELEC by this Court which the Court
is not empowered to do.

The Present Petition Presents a

Justiciable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution

Political questions refer to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government.102 A political question has two
aspects: (1) those matters that are to be exercised by the people in their primary political capacity;
and (2) matters which have been specifically designated to some other department or particular
office of the government, with discretionary power to act.103

In his concurring and dissenting opinion in Arroyo v. De Venecia,104 Senior Associate Justice
Reynato S. Puno explained the doctrine of political question vis-à-vis the express mandate of the
present Constitution for the courts to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the Government:

In the Philippine setting, there is more compelling reason for courts to categorically reject the
political question defense when its interposition will cover up abuse of power. For Section 1,
Article VIII of our Constitution was intentionally cobbled to empower courts "... to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." This power is
new and was not granted to our courts in the 1935 and 1972 Constitutions. It was also not
xeroxed from the US Constitution or any foreign state constitution. The CONCOM
[Constitutional Commission] granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state power were shielded from
judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former
 Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking
powers of the judiciary vis-à-vis the Executive and the Legislative departments of
government. In cases involving the proclamation of martial law and suspension of the
privilege of habeas corpus, it is now beyond dubiety that the government can no longer
invoke the political question defense.

xxxx

To a great degree, it diminished its [political question doctrine] use as a shield to protect
other abuses of government by allowing courts to penetrate the shield with new power to
review acts of any branch or instrumentality of the government ". . . to determine whether or
not there has been grave abuse of discretion amounting to lack or excess of jurisdiction."

Even if the present petition involves the act, not of a governmental body, but of purportedly more
than six million registered voters who have signified their assent to the proposal to amend the
Constitution, the same still constitutes a justiciable controversy, hence, a non-political question.
There is no doubt that the Constitution, under Article XVII, has explicitly provided for the manner or
method to effect amendments thereto, or revision thereof. The question, therefore, of whether there
has been compliance with the terms of the Constitution is for the Court to pass upon.105

In the United States, in In re McConaughy,106 the State Supreme Court of Minnesota exercised
jurisdiction over the petition questioning the result of the general election holding that "an
examination of the decisions shows that the courts have almost uniformly exercised the authority to
determine the validity of the proposal, submission, or ratification of constitutional amendments." The
cases cited were Dayton v. St. Paul,107 Rice v. Palmer,108 Bott v. Wurtz,109 State v. Powell,110 among
other cases.

There is no denying that "the Philippines is a democratic and republican State. Sovereignty resides
in the people and all government authority emanates from them."111 However, I find to be tenuous
the asseveration that "the argument that the people through initiative cannot propose substantial
amendments to change the Constitution turns sovereignty in its head. At the very least, the
submission constricts the democratic space for the exercise of the direct sovereignty of the
people."112 In effect, it is theorized that despite the unambiguous text of Section 2, Article XVII of the
Constitution withholding the power to revise it from the system of initiative, the people, in their
sovereign capacity, can conveniently disregard the said provision.

I strongly take exception to the view that the people, in their sovereign capacity, can disregard the
Constitution altogether. Such a view directly contravenes the fundamental constitutional theory that
while indeed "the ultimate sovereignty is in the people, from whom springs all legitimate authority";
nonetheless, "by the Constitution which they establish, they not only tie up the hands of their official
agencies, but their own hands as well; and neither the officers of the state, nor the whole people as
an aggregate body, are at liberty to take action in opposition to this fundamental law."113 The
Constitution, it should be remembered, "is the protector of the people, placed on guard by them to
save the rights of the people against injury by the people."114 This is the essence of constitutionalism:

Through constitutionalism we placed limits on both our political institutions and ourselves,
hoping that democracies, historically always turbulent, chaotic and even despotic, might now
become restrained, principled, thoughtful and just. So we bound ourselves over to a law that
we made and promised to keep. And though a government of laws did not displace
governance by men, it did mean that now men, democratic men, would try to live by their
word.115
Section 2, Article XVII of the Constitution on the system of initiative is limited only to proposals to
amend to the Constitution, and does not extend to its revision. The Filipino people have bound
themselves to observe the manner and method to effect the changes of the Constitution. They opted
to limit the exercise of the right to directly propose amendments to the Constitution through initiative,
but did not extend the same to the revision thereof. The petition for initiative, as it proposes to effect
the revision thereof, contravenes the Constitution. The fundamental law of the state prescribes the
limitations under which the electors of the state may change the same, and, unless such course is
pursued, the mere fact that a majority of the electors are in favor of a change and have so expressed
themselves, does not work a change. Such a course would be revolutionary, and the Constitution of
the state would become a mere matter of form.116

The very term Constitution implies an instrument of a permanent and abiding nature, and the
provisions contained therein for its revision indicated the will of the people that the underlying
principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like
permanent and abiding nature.117

The Filipino people have incorporated the safety valves of amendment and revision in Article XVII of
the Constitution. The Court is mandated to ensure that these safety valves embodied in the
Constitution to guard against improvident and hasty changes thereof are not easily trifled with. To be
sure, by having overwhelmingly ratified the Constitution, the Filipino people believed that it is "a good
Constitution" and in the words of the learned Judge Cooley:

x x x 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. Changes in
government are to be feared unless the benefit is certain. As Montaign says: "All great
mutations shake and disorder a state. Good does not necessarily succeed evil; another evil
may succeed and worse.118

Indisputably, the issues posed in the present case are of transcendental importance. Accordingly, I
have approached and grappled with them with full appreciation of the responsibilities involved in the
present case, and have given to its consideration the earnest attention which its importance
demands. I have sought to maintain the supremacy of the Constitution at whatever hazard. I share
the concern of Chief Justice Day in Koehler v. Hill:119 "it is for the protection of minorities that
constitutions are framed. Sometimes constitutions must be interposed for the protection of majorities
even against themselves. Constitutions are adopted in times of public repose, when sober reason
holds her citadel, and are designed to check the surging passions in times of popular excitement.
But if courts could be coerced by popular majorities into a disregard of their provisions, constitutions
would become mere 'ropes of sand,' and there would be an end of social security and of
constitutional freedom. The cause of temperance can sustain no injury from the loss of this
amendment which would be at all comparable to the injury to republican institutions which a violation
of the constitution would inflict. That large and respectable class of moral reformers which so justly
demands the observance and enforcement of law, cannot afford to take its first reformatory step by a
violation of the constitution. How can it consistently demand of others obedience to a constitution
which it violates itself? The people can in a short time re-enact the amendment. In the manner of a
great moral reform, the loss of a few years is nothing. The constitution is the palladium of republican
freedom. The young men coming forward upon the stage of political action must be educated to
venerate it; those already upon the stage must be taught to obey it. Whatever interest may be
advanced or may suffer, whoever or whatever may be 'voted up or voted down,' no sacrilegious
hand must be laid upon the constitution."120
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R.
No. 174299.

ROMEO J. CALLEJO, SR.

Associate Justice

____________________

EN BANC

G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.) and

G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON ELECTIONS, ET
AL.).

x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION

AZCUNA, J.:

"Why, friends, you go to do you know not what."

-- Shakespeare, Julius Caesar, Act III, Sc. 2.

Article XVII of the Constitution states:

AMENDMENTS OR REVISIONS

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its members; or

(2) A constitutional convention.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered votes therein. No amendment under this section shall be authorized
within five years following the ratification of this Constitution nor oftener than once every five
years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

Sec. 3. The Congress 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 to the electorate the question of
calling such a convention.
 Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be
valid when ratified by a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the approval of such amendment or
revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the sufficiency of the petition.

This Article states the procedure for changing the Constitution.

Constitutions have three parts – the Constitution of Liberty, which states the fundamental rights of
the people; the Constitution of Government, which establishes the structure of government, its
branches and their operation; and the Constitution of Sovereignty, which provides how the
Constitution may be changed.

Article XVII is the Constitution of Sovereignty.

As a result, the powers therein provided are called constituent powers. So when Congress acts
under this provision, it acts not as a legislature exercising legislative powers. It acts as a constituent
body exercising constituent powers.

The rules, therefore, governing the exercise of legislative powers do not apply, or do not apply
strictly, to the actions taken under Article XVII.

Accordingly, since Article XVII states that Congress shall provide for the implementation of the
exercise of the people's right directly to propose amendments to the Constitution through initiative,
the act of Congress pursuant thereto is not strictly a legislative action but partakes of a constituent
act.

As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the right to
propose a law or amendments to the Constitution is, with respect to the right to propose
amendments to the Constitution, a constituent measure, not a mere legislative one.

The consequence of this special character of the enactment, insofar as it relates to proposing
amendments to the Constitution, is that the requirements for statutory enactments, such as
sufficiency of standards and the like, do not and should not strictly apply. As long as there is a
sufficient and clear intent to provide for the implementation of the exercise of the right, it should be
sustained, as it is simply a compliance of the mandate placed on Congress by the Constitution.

Seen in this light, the provisions of Republic Act No. 6735 relating to the procedure for proposing
amendments to the Constitution, can and should be upheld, despite shortcomings perhaps in
legislative headings and standards.

For this reason, I concur in the view that Santiago v. Comelec1 should be re-examined and, after
doing so, that the pronouncement therein regarding the insufficiency or inadequacy of the measure
to sustain a people's initiative to amend the Constitution should be reconsidered in favor of allowing
the exercise of this sovereign right.

And applying the doctrine stated in Senarillos v. Hermosisima,2 penned by Justice J.B.L. Reyes, in
relation to Article 8 of the Civil Code, that a decision of this Court interpreting a law forms part of the
law interpreted as of the time of its enactment, Republic Act No. 6735 should be deemed sufficient
and adequate from the start.

This next point to address, there being a sufficient law, is whether the petition for initiative herein
involved complies with the requirements of that law as well as those stated in Article XVII of the
Constitution.

True it is that ours is a democratic state, as explicitated in the Declaration of Principles, to

emphasize precisely that there are instances recognized and provided for in the Constitution where
our people directly exercise their sovereign powers, new features set forth in this People Power
Charter, namely, the powers of recall, initiative and referendum.

Nevertheless, this democratic nature of our polity is that of a democracy under the rule of law. This
equally important point is emphasized in the very Preamble to the Constitution, which states:

". . . the blessings of . . . democracy under the rule of law . . . ."

Such is the case with respect to the power to initiate changes in the Constitution. The power is
subject to limitations under the Constitution itself, thus: The power could not be exercised for the first
five years after the Constitution took effect and thereafter can only be exercised once every five
years; the power only extends to proposing amendments but not revisions; and the power needs an
act of Congress providing for its implementation, which act is directed and mandated.

The question, therefore, arises whether the proposed changes in the Constitution set forth in the
petition for initiative herein involved are mere amendments or rather are revisions.

Revisions are changes that affect the entire Constitution and not mere parts of it.

The reason why revisions are not allowed through direct proposals by the people through initiative is
a practical one, namely, there is no one to draft such extensive changes, since 6.3 million people
cannot conceivably come up with a single extensive document through a direct proposal from each
of them. Someone would have to draft it and that is not authorized as it would not be a direct
proposal from the people. Such indirect proposals can only take the form of proposals from
Congress as a Constituent Assembly under Article XVII, or a Constitutional Convention created
under the same provision. Furthermore, there is a need for such deliberative bodies for revisions
because their proceedings and debates are duly and officially recorded, so that future cases of
interpretations can be properly aided by resort to the record of their proceedings.

Even a cursory reading of the proposed changes contained in the petition for initiative herein
involved will show on its face that the proposed changes constitute a revision of the Constitution.
The proposal is to change the system of government from that which is bicameral-presidential to one
that is unicameral-parliamentary.

While purportedly only Articles VI, VII, and XVIII are involved, the fact is, as the petition and text of
the proposed changes themselves state, every provision of the Constitution will have to be examined
to see if they conform to the nature of a unicameral-parliamentary form of government and changed
accordingly if they do not so conform to it. For example, Article VIII on Judicial Department cannot
stand as is, in a parliamentary system, for under such a system, the Parliament is supreme, and thus
the Court's power to declare its act a grave abuse of discretion and thus void would be an anomaly.
Now, who is to do such examination and who is to do such changes and how should the changes be
worded? The proposed initiative does not say who nor how.

Not only, therefore, is the proposed initiative, on this score, a prohibited revision but it also suffers
from being incomplete and insufficient on its very face.

It, therefore, in that form, cannot pass muster the very limits contained in providing for the power
under the Constitution.

Neither does it comply with Republic Act No. 6735, which states in Section 10 that not more than
one subject shall be proposed as an amendment or amendments to the Constitution. The petition
herein would propose at the very least two subjects – a unicameral legislature and a parliamentary
form of government. Again, for this clear and patent violation of the very act that provides for the
exercise of the power, the proposed initiative cannot lie.

This does not mean, however, that all is lost for petitioners.

For the proposed changes can be separated and are, in my view, separable in nature – a unicameral
legislature is one; a parliamentary form of government is another. The first is a mere amendment
and contains only one subject matter. The second is clearly a revision that affects every article and
every provision in the Constitution to an extent not even the proponents could at present fully
articulate. Petitioners Lambino, et al. thus go about proposing changes the nature and extent of
which they do not as yet know exactly what.

The proposal, therefore, contained in the petition for initiative, regarding a change in the legislature
from a bicameral or two-chamber body to that of a unicameral or one-chamber body, is sustainable.
The text of the changes needed to carry it out are perfunctory and ministerial in nature. Once it is
limited to this proposal, the changes are simply one of deletion and insertions, the wordings of which
are practically automatic and non-discretionary.

As an example, I attach to this opinion an Appendix "A" showing how the Constitution would read if
we were to change Congress from one consisting of the Senate and the House of Representatives
to one consisting only of the House of Representatives. It only affects Article VI on the Legislative
Department, some provisions on Article VII on the Executive Department, as well as Article XI on the
Accountability of Public Officers, and Article XVIII on Transitory Provisions. These are mere
amendments, substantial ones indeed but still only amendments, and they address only one subject
matter.

Such proposal, moreover, complies with the intention and rationale behind the present initiative,
which is to provide for simplicity and economy in government and reduce the stalemates that often
prevent needed legislation.

For the nonce, therefore, I vote to DISMISS the petition, without prejudice to the filing of an
appropriate initiative to propose amendments to the Constitution to change Congress into a
unicameral body. This is not say that I favor such a change. Rather, such a proposal would come
within the purview of an initiative allowed under Article XVII of the Constitution and its implementing
Republic Act, and should, therefore, be submitted to our people in a plebiscite for them to decide in
their sovereign capacity. After all is said and done, this is what democracy under the rule of law is
about.
 ADOLFO S. AZCUNA
Associate Justice

____________________

EN BANC

G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED

VOTERS
vs.
THE COMMISSION ON ELECTIONS

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG

vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and NICODEMO T. FERRER, and John Doe and Peter Doe

x ---------------------------------------------------------------------------------------- x

"It is a Constitution we are expounding…"1

– Chief Justice John Marshall

DISSENTING OPINION

PUNO, J.:

The petition at bar is not a fight over molehills. At the crux of the controversy is the critical
understanding of the first and foremost of our constitutional principles — "the Philippines is a
democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them."2 Constitutionalism dictates that this creed must be respected with deeds; our
belief in its validity must be backed by behavior.

This is a Petition for Certiorari and Mandamus to set aside the resolution of respondent Commission
on Elections (COMELEC) dated August 31, 2006, denying due course to the Petition for Initiative
filed by petitioners Raul L. Lambino and Erico B. Aumentado in their own behalf and together with
some 6.3 million registered voters who have affixed their signatures thereon, and praying for the
issuance of a writ of mandamus to compel respondent COMELEC to set the date of the plebiscite for
the ratification of the proposed amendments to the Constitution in accordance with Section 2, Article
XVII of the 1987 Constitution.

First, a flashback of the proceedings of yesteryears. In 1996, the Movement for People's
Initiative sought to exercise the sovereign people's power to directly propose amendments to the
Constitution through initiative under Section 2, Article XVII of the 1987 Constitution. Its founding
member, Atty. Jesus S. Delfin, filed with the COMELEC on December 6, 1996, a "Petition to Amend
the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (Delfin Petition). It
proposed to amend Sections 4 and 7 of Article VI, Section 4 of Article VII, and Section 8 of Article X
of the 1987 Constitution by deleting the provisions on the term limits for all elective officials.

The Delfin Petition stated that the Petition for Initiative would first be submitted to the people and
would be formally filed with the COMELEC after it is signed by at least twelve per cent (12%) of the
total number of registered voters in the country. It thus sought the assistance of the COMELEC in
gathering the required signatures by fixing the dates and time therefor and setting up
signature stations on the assigned dates and time. The petition prayed that the COMELEC issue
an Order (1) fixing the dates and time for signature gathering all over the country; (2) causing the
publication of said Order and the petition for initiative in newspapers of general and local circulation;
and, (3) instructing the municipal election registrars in all the regions of the Philippines to assist
petitioner and the volunteers in establishing signing stations on the dates and time designated for
the purpose.

The COMELEC conducted a hearing on the Delfin Petition.

On December 18, 1996, Senator Miriam Defensor Santiago, Alexander Padilla and Maria Isabel
Ongpin filed a special civil action for prohibition before this Court, seeking to restrain the COMELEC
from further considering the Delfin Petition. They impleaded as respondents the COMELEC, Delfin,
and Alberto and Carmen Pedrosa (Pedrosas) in their capacities as founding members of the
People's Initiative for Reforms, Modernization and Action (PIRMA) which was likewise engaged in
signature gathering to support an initiative to amend the Constitution. They argued that the
constitutional provision on people's initiative may only be implemented by a law passed by
Congress; that no such law has yet been enacted by Congress; that Republic Act No. 6735 relied
upon by Delfin does not cover the initiative to amend the Constitution; and that COMELEC
Resolution No. 2300, the implementing rules adopted by the COMELEC on the conduct of initiative,
was ultra vires insofar as the initiative to amend the Constitution was concerned. The case was
docketed as G.R. No. 127325, entitled Santiago v. Commission on Elections.3

Pending resolution of the case, the Court issued a temporary restraining order enjoining the
COMELEC from proceeding with the Delfin Petition and the Pedrosas from conducting a signature
drive for people's initiative to amend the Constitution.

On March 19, 1997, the Court rendered its decision on the petition for prohibition. The Court
ruled that the constitutional provision granting the people the power to directly amend the
Constitution through initiative is not self-executory. An enabling law is necessary to implement the
exercise of the people's right. Examining the provisions of R.A. 6735, a majority of eight (8)
members of the Court held that said law was "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is
concerned,"4 and thus voided portions of COMELEC Resolution No. 2300 prescribing rules and
regulations on the conduct of initiative on amendments to the Constitution. It was also held that even
if R.A. 6735 sufficiently covered the initiative to amend the Constitution and COMELEC Resolution
No. 2300 was valid, the Delfin Petition should still be dismissed as it was not the proper initiatory
pleading contemplated by law. Under Section 2, Article VII of the 1987 Constitution and Section
5(b) of R.A. 6735, a petition for initiative on the Constitution must be signed by at least twelve per
cent (12%) of the total number of registered voters, of which every legislative district is represented
by at least three per cent (3%) of the registered voters therein. The Delfin Petition did not contain
signatures of the required number of voters. The decision stated:

CONCLUSION
 This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution
should no longer be kept in the cold; it should be given flesh and blood, energy and strength.
Congress should not tarry any longer in complying with the constitutional mandate to provide
for the implementation of the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on

amendments to the Constitution, and to have failed to provide sufficient standard for
subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on

Elections prescribing rules and regulations on the conduct of initiative or
amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN

petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent against
the Commission on Elections, but is LIFTED as against private respondents.5

Eight (8) members of the Court, namely, then Associate Justice Hilario G. Davide, Jr. (ponente),
Chief Justice Andres R. Narvasa, and Associate Justices Florenz D. Regalado, Flerida Ruth P.
Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres,
fully concurred in the majority opinion.

While all the members of the Court who participated in the deliberation6 agreed that the Delfin
Petition should be dismissed for lack of the required signatures, five (5) members, namely,
Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and
Artemio V. Panganiban, held that R.A. 6735 was sufficient and adequate to implement the people's
right to amend the Constitution through initiative, and that COMELEC Resolution No. 2300 validly
provided the details for the actual exercise of such right. Justice Jose C. Vitug, on the other hand,
opined that the Court should confine itself to resolving the issue of whether the Delfin Petition
sufficiently complied with the requirements of the law on initiative, and there was no need to rule
on the adequacy of R.A. 6735.

The COMELEC, Delfin and the Pedrosas filed separate motions for reconsideration of the Court's
decision.

After deliberating on the motions for reconsideration, six (6)7 of the eight (8) majority members
maintained their position that R.A. 6735 was inadequate to implement the provision on the initiative
on amendments to the Constitution. Justice Torres filed an inhibition, while Justice Hermosisima
submitted a Separate Opinion adopting the position of the minority that R.A. 6735 sufficiently covers
the initiative to amend the Constitution. Hence, of the thirteen (13) members of the Court who
participated in the deliberation, six (6) members, namely, Chief Justice Narvasa and Associate
Justices Regalado, Davide, Romero, Bellosillo and Kapunan voted to deny the motions for lack of
merit; and six (6) members, namely, Associate Justices Melo, Puno, Mendoza, Francisco,
Hermosisima and Panganiban voted to grant the same. Justice Vitug maintained his opinion that the
matter was not ripe for judicial adjudication. The motions for reconsideration were therefore denied
for lack of sufficient votes to modify or reverse the decision of March 19, 1997.8

On June 23, 1997, PIRMA filed with the COMELEC a Petition for Initiative to Propose Amendments
to the Constitution (PIRMA Petition). The PIRMA Petition was supported by around five (5) million
signatures in compliance with R.A. 6735 and COMELEC Resolution No. 2300, and prayed that the
COMELEC, among others: (1) cause the publication of the petition in Filipino and English at least
twice in newspapers of general and local circulation; (2) order all election officers to verify the
signatures collected in support of the petition and submit these to the Commission; and (3) set the
holding of a plebiscite where the following proposition would be submitted to the people for
ratification:

Do you approve amendments to the 1987 Constitution giving the President the chance to be
reelected for another term, similarly with the Vice-President, so that both the highest officials
of the land can serve for two consecutive terms of six years each, and also to lift the term
limits for all other elective government officials, thus giving Filipino voters the freedom of
choice, amending for that purpose, Section 4 of Article VII, Sections 4 and 7 of Article VI and
Section 8 of Article X, respectively?

The COMELEC dismissed the PIRMA Petition in view of the permanent restraining order issued by
the Court in Santiago v. COMELEC.

PIRMA filed with this Court a Petition for Mandamus and Certiorari seeking to set aside the
COMELEC Resolution dismissing its petition for initiative. PIRMA argued that the Court's decision on
the Delfin Petition did not bar the COMELEC from acting on the PIRMA Petition as said ruling was
not definitive based on the deadlocked voting on the motions for reconsideration, and because there
was no identity of parties and subject matter between the two petitions. PIRMA also urged the Court
to reexamine its ruling in Santiago v. COMELEC.

The Court dismissed the petition for mandamus and certiorari in its resolution dated September
23, 1997. It explained:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be
attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA
therein, it appearing that it only complied with the dispositions in the Decision of this Court in
G.R. No. 127325 promulgated on March 19, 1997, and its Resolution of June 10, 1997.

The Court next considered the question of whether there was need to resolve the second
issue posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A.
6735. On this issue, the Chief Justice and six (6) other members of the Court, namely,
Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no
need to take it up. Vitug, J., agreed that there was no need for re-examination of said second
issue since the case at bar is not the proper vehicle for that purpose. Five (5) other members
of the Court, namely, Melo, Puno, Francisco, Hermosisima, and Panganiban, JJ., opined that
there was a need for such a re-examination x x x x9

In their Separate Opinions, Justice (later Chief Justice) Davide and Justice Bellosillo stated that the
PIRMA petition was dismissed on the ground of res judicata.
Now, almost a decade later, another group, Sigaw ng Bayan, seeks to utilize anew the system of
initiative to amend the Constitution, this time to change the form of government from bicameral-
presidential to unicameral-parliamentary system.

Let us look at the facts of the petition at bar with clear eyes.

On February 15, 2006, Sigaw ng Bayan, in coordination with Union of Local Authorities of the
Philippines (ULAP), embarked on a nationwide drive to gather signatures to support the move to
adopt the parliamentary form of government in the country through charter change. They proposed
to amend the Constitution as follows:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by
law, to be apportioned among the provinces, representative districts, and cities in
accordance with the number of their respective inhabitants, with at least three
hundred thousand inhabitants per district, and on the basis of a uniform and
progressive ratio. Each district shall comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province must have at least one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at

least twenty-five years old on the day of the election, a resident of his district for at
least one year prior thereto, and shall be elected by the qualified voters of his district
for a term of five years without limitation as to the number thereof, except those
under the party-list system which shall be provided for by law and whose number
shall be equal to twenty per centum of the total membership coming from the
parliamentary districts.

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to
read, as follows:

Section 1. There shall be a President who shall be the Head of State. The executive
power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The
Prime Minister shall be elected by a majority of all the Members of Parliament from
among themselves. He shall be responsible to the Parliament for the program of
government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to

a unicameral-Parliamentary form of government, there shall be a new Article XVIII,
entitled "Transitory Provisions," which shall read, as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the
expiration of their term at noon on the thirtieth day of June 2010 and shall continue to
exercise their powers under the 1987 Constitution unless impeached by a vote of two
thirds of all the members of the interim parliament.

(2) In case of death, permanent disability, resignation or removal from office of the
incumbent President, the incumbent Vice President shall succeed as President. In
case of death, permanent disability, resignation or removal from office of both the
incumbent President and Vice President, the interim Prime Minister shall assume all
the powers and responsibilities of Prime Minister under Article VII as amended.
Section 2. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the
1987 Constitution which shall hereby be amended and Sections 18 and 24 which
shall be deleted, all other Sections of Article VI are hereby retained and renumbered
sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the
Parliamentary system of government, in which case, they shall be amended to
conform with a unicameral parliamentary form of government; provided, however,
that any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to read "Parliament;"
that any and all references therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of the House of Representatives" shall be changed to read as
"Member(s) of Parliament" and any and all references to the "President" and/or
"Acting President" shall be changed to read "Prime Minister."

Section 3. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987
Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which
are hereby deleted, all other Sections of Article VII shall be retained and renumbered
sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with
Section 1 hereof, in which case they shall be deemed amended so as to conform to a
unicameral Parliamentary System of government; provided, however, that any all
references therein to "Congress," "Senate," "House of Representatives" and "Houses
of Congress" shall be changed to read "Parliament;" that any and all references
therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of
Representatives" shall be changed to read as "Member(s) of Parliament" and any
and all references to the "President" and or "Acting President" shall be changed to
read "Prime Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall
have been elected and shall have qualified. It shall be composed of the incumbent
Members of the Senate and the House of Representatives and the incumbent
Members of the Cabinet who are heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament

until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet
and shall head a ministry. He shall initially convene the interim Parliament and shall
preside over its sessions for the election of the interim Prime Minister and until the
Speaker shall have been elected by a majority vote of all the members of the interim
Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until
noon of the thirtieth day of June 2010.

(4) Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy.

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate,
from among the members of the interim Parliament, an interim Prime Minister, who
shall be elected by a majority vote of the members thereof. The interim Prime
 Minister shall oversee the various ministries and shall perform such powers and
responsibilities as may be delegated to him by the incumbent President."

(2) The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of
all local government officials. The duly elected Prime Minister shall continue to
exercise and perform the powers, duties and responsibilities of the interim Prime
Minister until the expiration of the term of the incumbent President and Vice
President.10

Sigaw ng Bayan prepared signature sheets, on the upper portions of which were written the
abstract of the proposed amendments, to wit:

Abstract: Do you approve of the amendment of Articles VI and VII of the 1987 Constitution,
changing the form of government from the present bicameral-presidential to a unicameral-
parliamentary system of government, in order to achieve greater efficiency, simplicity and
economy in government; and providing an Article XVIII as Transitory Provisions for the
orderly shift from one system to another?

The signature sheets were distributed nationwide to affiliated non-government organizations and
volunteers of Sigaw ng Bayan, as well as to the local officials. Copies of the draft petition for initiative
containing the proposition were also circulated to the local officials and multi-sectoral groups.

Sigaw ng Bayan alleged that it also held barangay assemblies which culminated on March 24, 25
and 26, 2006, to inform the people and explain to them the proposed amendments to the
Constitution. Thereafter, they circulated the signature sheets for signing.

The signature sheets were then submitted to the local election officers for verification based on
the voters' registration record. Upon completion of the verification process, the respective local
election officers issued certifications to attest that the signature sheets have been verified. The
verified signature sheets were subsequently transmitted to the office of Sigaw ng Bayan for the
counting of the signatures.

On August 25, 2006, herein petitioners Raul L. Lambino and Erico B. Aumentado filed with the
COMELEC a Petition for Initiative to Amend the Constitution entitled "In the Matter of Proposing
Amendments to the 1987 Constitution through a People's Initiative: A Shift from a Bicameral
Presidential to a Unicameral Parliamentary Government by Amending Articles VI and VII; and
Providing Transitory Provisions for the Orderly Shift from the Presidential to the Parliamentary
System." They filed an Amended Petition on August 30, 2006 to reflect the text of the proposed
amendment that was actually presented to the people. They alleged that they were filing the petition
in their own behalf and together with some 6.3 million registered voters who have affixed their
signatures on the signature sheets attached thereto. Petitioners appended to the petition signature
sheets bearing the signatures of registered voters which they claimed to have been verified by the
respective city or municipal election officers, and allegedly constituting at least twelve per cent (12%)
of all registered voters in the country, wherein each legislative district is represented by at least three
per cent (3%) of all the registered voters therein.

As basis for the filing of their petition for initiative, petitioners averred that Section 5 (b) and
(c), together with Section 7 of R.A. 6735, provide sufficient enabling details for the people's
exercise of the power. Hence, petitioners prayed that the COMELEC issue an Order:
 1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987
Constitution;

2. Directing the publication of the petition in Filipino and English at least twice in newspapers
of general and local circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the
Certification by the COMELEC of the sufficiency of the petition, to allow the Filipino people to
express their sovereign will on the proposition.

Several groups filed with the COMELEC their respective oppositions to the petition for
initiative, among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon
III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.,
Senate Minority Leader Aquilino Q. Pimentel, Jr., Senators Sergio Osmeña III, Jamby A.S. Madrigal,
Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives
Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang
Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan,
League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald
Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A.
Lat, Antonio L. Salvador, and Randall C. Tabayoyong.

On August 31, 2006, the COMELEC denied due course to the Petition for Initiative. It cited this
Court's ruling in Santiago v. COMELEC11 permanently enjoining the Commission from entertaining or
taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of the system.

Forthwith, petitioners filed with this Court the instant Petition for Certiorari and Mandamus praying
that the Court set aside the August 31, 2006 resolution of the COMELEC, direct respondent
COMELEC to comply with Section 4, Article XVII of the Constitution, and set the date of the
plebiscite. They state the following grounds in support of the petition:

I.

The Honorable public respondent COMELEC committed grave abuse of discretion in

refusing to take cognizance of, and to give due course to the petition for initiative, because
the cited Santiago ruling of 19 March 1997 cannot be considered the majority opinion of the
Supreme Court en banc, considering that upon its reconsideration and final voting on 10
June 1997, no majority vote was secured to declare Republic Act No. 6735 as inadequate,
incomplete and insufficient in standard.

II.

The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189 and existing
appropriation of the COMELEC provide for sufficient details and authority for the exercise of
people's initiative, thus, existing laws taken together are adequate and complete.

III.

The Honorable public respondent COMELEC committed grave abuse of discretion in

refusing to take cognizance of, and in refusing to give due course to the petition for initiative,
thereby violating an express constitutional mandate and disregarding and contravening the
will of the people.

A.

Assuming in arguendo that there is no enabling law, respondent COMELEC cannot

ignore the will of the sovereign people and must accordingly act on the petition for
initiative.

1.

The framers of the Constitution intended to give the people the power to
propose amendments and the people themselves are now giving vibrant life
to this constitutional provision.

2.

Prior to the questioned Santiago ruling of 19 March 1997, the right of the
people to exercise the sovereign power of initiative and recall has been
invariably upheld.

3.

The exercise of the initiative to propose amendments is a political question

which shall be determined solely by the sovereign people.

4.

By signing the signature sheets attached to the petition for initiative duly
verified by the election officers, the people have chosen to perform this
sacred exercise of their sovereign power.

B.

The Santiago ruling of 19 March 1997 is not applicable to the instant petition for
initiative filed by the petitioners.

C.

The permanent injunction issued in Santiago vs. COMELEC only applies to the Delfin
petition.

1.

It is the dispositive portion of the decision and not other statements in the
body of the decision that governs the rights in controversy.

IV.
 The Honorable public respondent failed or neglected to act or perform a duty
mandated by law.

A.

The ministerial duty of the COMELEC is to set the initiative for

plebiscite.12

The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L.

Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law
Groups, Inc.; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante Gabriela, Gabriela
Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Dr.
Darby Santiago, and Dr. Reginald Pamugas; Senate Minority Leader Aquilino Q. Pimentel, Jr., and
Senators Sergio Osmeña III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P.
Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja,
and Ana Theresia Hontiveros-Baraquel; and Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz,
Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong moved
to intervene in this case and filed their respective Oppositions/Comments-in-Intervention.

The Philippine Constitution Association, Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon,
Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; the
Integrated Bar of the Philippines Cebu City and Cebu Province Chapters; former President Joseph
Ejercito Estrada and Pwersa ng Masang Pilipino; and the Senate of the Philippines, represented by
Senate President Manuel Villar, Jr., also filed their respective motions for intervention and
Comments-in-Intervention.

The Trade Union Congress of the Philippines, Sulongbayan Movement Foundation, Inc., Ronald L.
Adamat, Rolando Manuel Rivera, Ruelo Baya, Philippine Transport and General Workers
Organization, and Victorino F. Balais likewise moved to intervene and submitted to the Court a
Petition-in-Intervention. All interventions and oppositions were granted by the Court.

The oppositors-intervenors essentially submit that the COMELEC did not commit grave abuse of
discretion in denying due course to the petition for initiative as it merely followed this Court's ruling
in Santiago v. COMELEC as affirmed in the case of PIRMA v. COMELEC, based on the principle
of stare decisis; that there is no sufficient law providing for the authority and the details for the
exercise of people's initiative to amend the Constitution; that the proposed changes to the
Constitution are actually revisions, not mere amendments; that the petition for initiative does not
meet the required number of signatories under Section 2, Article XVII of the 1987 Constitution; that it
was not shown that the people have been informed of the proposed amendments as there was
disparity between the proposal presented to them and the proposed amendments attached to the
petition for initiative, if indeed there was; that the verification process was done ex parte, thus
rendering dubious the signatures attached to the petition for initiative; and that petitioners Lambino
and Aumentado have no legal capacity to represent the signatories in the petition for initiative.

The Office of the Solicitor General (OSG), in compliance with the Court's resolution of September
5, 2006, filed its Comment to the petition. Affirming the position of the petitioners, the OSG prayed
that the Court grant the petition at bar and render judgment: (1) declaring R.A. 6735 as adequate to
cover or as reasonably sufficient to implement the system of initiative on amendments to the
Constitution and as having provided sufficient standards for subordinate legislation; (2) declaring as
valid the provisions of COMELEC Resolution No. 2300 on the conduct of initiative or amendments to
the Constitution; (3) setting aside the assailed resolution of the COMELEC for having been rendered
with grave abuse of discretion amounting to lack or excess of jurisdiction; and, (4) directing the
COMELEC to grant the petition for initiative and set the corresponding plebiscite pursuant to R.A.
6735, COMELEC Resolution No. 2300, and other pertinent election laws and regulations.

The COMELEC filed its own Comment stating that its resolution denying the petition for initiative is
not tainted with grave abuse of discretion as it merely adhered to the ruling of this Court in Santiago
v. COMELEC which declared that R.A. 6735 does not adequately implement the constitutional
provision on initiative to amend the Constitution. It invoked the permanent injunction issued by the
Court against the COMELEC from taking cognizance of petitions for initiative on amendments to the
Constitution until a valid enabling law shall have been passed by Congress. It asserted that the
permanent injunction covers not only the Delfin Petition, but also all other petitions involving
constitutional initiatives.

On September 26, 2006, the Court heard the case. The parties were required to argue on the
following issues:13

1. Whether petitioners Lambino and Aumentado are proper parties to file the present Petition
in behalf of the more than six million voters who allegedly signed the proposal to amend the
Constitution.

2. Whether the Petitions for Initiative filed before the Commission on Elections complied with
Section 2, Article XVII of the Constitution.

3. Whether the Court's decision in Santiago v. COMELEC (G.R. No. 127325, March 19,
1997) bars the present petition.

4. Whether the Court should re-examine the ruling in Santiago v. COMELEC that there is no
sufficient law implementing or authorizing the exercise of people's initiative to amend the
Constitution.

5. Assuming R.A. 6735 is sufficient, whether the Petitions for Initiative filed with the
COMELEC have complied with its provisions.

5.1 Whether the said petitions are sufficient in form and substance.

5.2 Whether the proposed changes embrace more than one subject matter.

6. Whether the proposed changes constitute an amendment or revision of the Constitution.

6.1 Whether the proposed changes are the proper subject of an initiative.

7. Whether the exercise of an initiative to propose amendments to the Constitution is a

political question to be determined solely by the sovereign people.

8. Whether the Commission on Elections committed grave abuse of discretion in dismissing

the Petitions for Initiative filed before it.

With humility, I offer the following views to these issues as profiled:

I
 Petitioners Lambino and Aumentado are proper parties to file the present Petition in
behalf of the more than six million voters who allegedly signed the proposal to amend
the Constitution.

Oppositors-intervenors contend that petitioners Lambino and Aumentado are not the proper parties
to file the instant petition as they were not authorized by the signatories in the petition for initiative.

The argument deserves scant attention. The Constitution requires that the petition for initiative
should be filed by at least twelve per cent (12%) of all registered voters, of which every legislative
district must be represented by at least three per cent (3%) of all the registered voters therein. The
petition for initiative filed by Lambino and Aumentado before the COMELEC was accompanied by
voluminous signature sheets which prima facie show the intent of the signatories to support the
filing of said petition. Stated above their signatures in the signature sheets is the following:

x x x My signature herein which shall form part of the petition for initiative to amend the
Constitution signifies my support for the filing thereof.14

There is thus no need for the more than six (6) million signatories to execute separate documents to
authorize petitioners to file the petition for initiative in their behalf.

Neither is it necessary for said signatories to authorize Lambino and Aumentado to file the petition
for certiorari and mandamus before this Court. Rule 65 of the 1997 Rules of Civil Procedure provides
who may file a petition for certiorari and mandamus. Sections 1 and 3 of Rule 65 read:

SECTION 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial
or quasi-judicial functions has acted without or in excess of his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court x x x x.

SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station x x x and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court x x x x.

Thus, any person aggrieved by the act or inaction of the respondent tribunal, board or officer may
file a petition for certiorari or mandamus before the appropriate court. Certainly, Lambino and
Aumentado, as among the proponents of the petition for initiative dismissed by the COMELEC, have
the standing to file the petition at bar.

II

The doctrine of stare decisis does not bar the reexamination of Santiago.

The latin phrase stare decisis et non quieta movere means "stand by the thing and do not disturb
the calm." The doctrine started with the English Courts.15 Blackstone observed that at the beginning
of the 18th century, "it is an established rule to abide by former precedents where the same points
come again in litigation."16 As the rule evolved, early limits to its application were recognized: (1)
it would not be followed if it were "plainly unreasonable;" (2) where courts of equal authority
developed conflicting decisions; and, (3) the binding force of the decision was the "actual principle or
principles necessary for the decision; not the words or reasoning used to reach the decision."17

The doctrine migrated to the United States. It was recognized by the framers of the U.S.
Constitution.18 According to Hamilton, "strict rules and precedents" are necessary to prevent
"arbitrary discretion in the courts."19 Madison agreed but stressed that "x x x once the precedent
ventures into the realm of altering or repealing the law, it should be rejected."20 Prof. Consovoy
well noted that Hamilton and Madison "disagree about the countervailing policy considerations that
would allow a judge to abandon a precedent."21 He added that their ideas "reveal a deep internal
conflict between the concreteness required by the rule of law and the flexibility demanded in error
correction. It is this internal conflict that the Supreme Court has attempted to deal with for
over two centuries."22

Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare
decisisdeveloped its own life in the United States. Two strains of stare decisis have been isolated
by legal scholars.23 The first, known as vertical stare decisis deals with the duty of lower courts to
apply the decisions of the higher courts to cases involving the same facts. The second, known
as horizontal stare decisis requires that high courts must follow its own precedents. Prof.
Consovoy correctly observes that vertical stare decisis has been viewed as
an obligation, while horizontal stare decisis, has been viewed as a policy, imposing choice but not
a command.24 Indeed, stare decisis is not one of the precepts set in stone in our Constitution.

It is also instructive to distinguish the two kinds of horizontal stare decisis — constitutional stare
decisis and statutory stare decisis.25 Constitutional stare decisis involves judicial interpretations
of the Constitution while statutory stare decisis involves interpretations of statutes. The distinction
is important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional
litigations. Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still
holds sway today. In soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and
inexorable command. The rule of stare decisis is not inflexible. Whether it shall be followed or
departed from, is a question entirely within the discretion of the court, which is again called upon
to consider a question once decided."26 In the same vein, the venerable Justice Frankfurter opined:
"the ultimate touchstone of constitutionality is the Constitution itself and not what we have said
about it."27 In contrast, the application of stare decisis on judicial interpretation of statutes is more
inflexible. As Justice Stevens explains: "after a statute has been construed, either by this Court or
by a consistent course of decision by other federal judges and agencies, it acquires a meaning that
should be as clear as if the judicial gloss had been drafted by the Congress itself."28 This stance
reflects both respect for Congress' role and the need to preserve the courts' limited resources.

In general, courts follow the stare decisis rule for an ensemble of reasons,29 viz: (1) it legitimizes
judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability.
Contrariwise, courts refuse to be bound by the stare decisis rule where30 (1) its application
perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing social
and political understandings; (3) it leaves the power to overturn bad constitutional law solely in the
hands of Congress; and, (4) activist judges can dictate the policy for future courts while judges that
respect stare decisis are stuck agreeing with them.

In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and
reversed its decisions in 192 cases.31 The most famous of these reversals is Brown v. Board of
Education32 which junked Plessy v. Ferguson's33 "separate but equal doctrine." Plessy upheld as
constitutional a state law requirement that races be segregated on public transportation. In Brown,
the U.S. Supreme Court, unanimously held that "separate . . . is inherently unequal." Thus, by
freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans
from the chains of inequality. In the Philippine setting, this Court has likewise refused to be
straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal-B'laan Tribal
Association, Inc. v. Ramos,34 we reversed our original ruling that certain provisions of the Mining Law
are unconstitutional. Similarly, in Secretary of Justice v. Lantion,35 we overturned our first ruling
and held, on motion for reconsideration, that a private respondent is bereft of the right to notice and
hearing during the evaluation stage of the extradition process.

An examination of decisions on stare decisis in major countries will show that courts are
agreed on the factors that should be considered before overturning prior rulings. These are
workability, reliance, intervening developments in the law and changes in fact. In addition,
courts put in the balance the following determinants: closeness of the voting, age of the prior
decision and its merits.36

The leading case in deciding whether a court should follow the stare decisis rule in constitutional
litigations is Planned Parenthood v. Casey.37 It established a 4-pronged test. The court should (1)
determine whether the rule has proved to be intolerable simply in defying practical workability; (2)
consider whether the rule is subject to a kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of repudiation; (3) determine
whether related principles of law have so far developed as to have the old rule no more than a
remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or come to be
seen differently, as to have robbed the old rule of significant application or justification.

Following these guidelines, I submit that the stare decisis rule should not bar the
reexamination of Santiago. On the factor of intolerability, the six (6) justices in Santiago held
R.A. 6735 to be insufficient as it provided no standard to guide COMELEC in issuing its
implementing rules. The Santiago ruling that R.A. 6735 is insufficient but without striking it down as
unconstitutional is an intolerable aberration, the only one of its kind in our planet. It improperly
assails the ability of legislators to write laws. It usurps the exclusive right of legislators to determine
how far laws implementing constitutional mandates should be crafted. It is elementary that courts
cannot dictate on Congress the style of writing good laws, anymore than Congress can tell courts
how to write literate decisions. The doctrine of separation of powers forbids this Court to invade the
exclusive lawmaking domain of Congress for courts can construe laws but cannot construct
them. The end result of the ruling of the six (6) justices that R.A. 6735 is insufficient is intolerable for
it rendered lifeless the sovereign right of the people to amend the Constitution via an initiative.

On the factor of reliance, the ruling of the six (6) justices in Santiago did not induce any
expectation from the people. On the contrary, the ruling smothered the hope of the people that they
could amend the Constitution by direct action. Moreover, reliance is a non-factor in the case at bar
for it is more appropriate to consider in decisions involving contracts where private rights are
adjudicated. The case at bar involves no private rights but the sovereignty of the people.

On the factor of changes in law and in facts, certain realities on ground cannot be blinked away.
The urgent need to adjust certain provisions of the 1987 Constitution to enable the country to
compete in the new millennium is given. The only point of contention is the mode to effect the
change - - - whether through constituent assembly, constitutional convention or people's initiative.
Petitioners claim that they have gathered over six (6) million registered voters who want to amend
the Constitution through people's initiative and that their signatures have been verified by registrars
of the COMELEC. The six (6) justices who ruled that R.A. 6735 is insufficient to implement the
direct right of the people to amend the Constitution through an initiative cannot waylay the
will of 6.3 million people who are the bearers of our sovereignty and from whom all
government authority emanates. New developments in our internal and external social, economic,
and political settings demand the reexamination of the Santiago case. The stare decisis rule is no
reason for this Court to allow the people to step into the future with a blindfold.

III

A reexamination of R.A. 6735 will show that it is sufficient to implement the people's
initiative.

Let us reexamine the validity of the view of the six (6) justices that R.A. 6735 is insufficient to
implement Section 2, Article XVII of the 1987 Constitution allowing amendments to the Constitution
to be directly proposed by the people through initiative.

When laws are challenged as unconstitutional, courts are counseled to give life to the intent of
legislators. In enacting R.A. 6735, it is daylight luminous that Congress intended the said law to
implement the right of the people, thru initiative, to propose amendments to the Constitution by direct
action. This all-important intent is palpable from the following:

First. The text of R.A. 6735 is replete with references to the right of the people to initiate changes to
the Constitution:

The policy statement declares:

Sec. 2. Statement of Policy. -- The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part,
the Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed.
(emphasis supplied)

It defines "initiative" as "the power of the people to propose amendments to the Constitution or
to propose and enact legislations through an election called for the purpose," and "plebiscite" as
"the electoral process by which an initiative on the Constitution is approved or rejected by the
people."

It provides the requirements for a petition for initiative to amend the Constitution, viz:

(1) That "(a) petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every
legislative district must be represented by at least three per centum (3%) of the registered
voters therein;"38 and

(2) That "(i)nitiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter."39

It fixes the effectivity date of the amendment under Section 9(b) which provides that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite."

Second. The legislative history of R.A. 6735 also reveals the clear intent of the lawmakers to use it
as the instrument to implement people's initiative. No less than former Chief Justice Hilario G.
Davide, Jr., the ponente in Santiago, concedes:40
 We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to
propose amendments to the Constitution. The Act is a consolidation of House Bill No. 21505
and Senate Bill No. 17 x x x x The Bicameral Conference Committee consolidated Senate
Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8
June 1989 by the Senate and by the House of Representatives. This approved bill is now
R.A. No. 6735.

Third. The sponsorship speeches by the authors of R.A. 6735 similarly demonstrate beyond doubt
this intent. In his sponsorship remarks, the late Senator Raul Roco (then a Member of the House of
Representatives) emphasized the intent to make initiative as a mode whereby the people can
propose amendments to the Constitution. We quote his relevant remarks:41

SPONSORSHIP REMAKRS OF REP. ROCO

MR. ROCO. Mr. Speaker, with the permission of the committee, we wish to speak in support
of House Bill No. 497, entitled: INITIATIVE AND REFERENDUM ACT OF 1987, which later
on may be called Initiative and Referendum Act of 1989.

As a background, we want to point out the constitutional basis of this particular bill. The grant
of plenary legislative power upon the Philippine Congress by the 1935, 1973 and 1987
Constitutions, Mr. Speaker, was based on the principle that any power deemed to be
legislative by usage and tradition is necessarily possessed by the Philippine Congress
unless the Organic Act has lodged it elsewhere. This was a citation from Vera vs.
Avelino (1946).

The presidential system introduced by the 1935 Constitution saw the application of the
principle of separation of powers. While under the parliamentary system of the 1973
Constitution the principle remained applicable, Amendment 6 or the 1981 amendments to the
1973 Constitution ensured presidential dominance over the Batasang Pambansa.

Our constitutional history saw the shifting and sharing of legislative power between the
legislature and the executive.

Transcending such changes in the exercise of legislative power is the declaration in the
Philippine Constitution that he Philippines is a Republican State where sovereignty resides in
the people and all government authority emanates from them.

In a Republic, Mr. Speaker, the power to govern is vested in its citizens participating through
the right of suffrage and indicating thereby their choice of lawmakers.

Under the 1987 Constitution, lawmaking power is still preserved in Congress. However, to
institutionalize direct action of the people as exemplified in the 1986 Revolution, there is a
practical recognition of what we refer to as people's sovereign power. This is the recognition
of a system of initiative and referendum.

Section 1, Article VI of the 1987 Constitution provides, and I quote:

The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum.
In other words, Mr. Speaker, under the 1987 Constitution, Congress does not have plenary
powers. There is a reserved legislative power given to the people expressly.

Section 32, the implementing provision of the same article of the Constitution provides, and I
quote:

The Congress shall, as early as possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby the people can directly propose
and enact laws or approve or reject any act or law or part thereof passed by the
Congress or local legislative body after the registration of a petition therefor signed
by at least ten per centum of the total number of registered voters, or which every
legislative district must be represented by at least three per centum of the registered
voters thereof.

In other words, Mr. Speaker, in Section 1 of Article VI which describes legislative power,
there are reserved powers given to the people. In Section 32, we are specifically told to pass
at the soonest possible time a bill on referendum and initiative. We are specifically mandated
to share the legislative powers of Congress with the people.

Of course, another applicable provision in the Constitution is Section 2, Article XVII, Mr.
Speaker. Under the provision on amending the Constitution, the section reads, and I quote:

Amendments to this Constitution may likewise be directly proposed by the people

through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under this section
shall be authorized within five years following the ratification of this Constitution nor
oftener than once every five years thereafter.

We in Congress therefore, Mr. Speaker, are charged with the duty to implement the exercise
by the people of the right of initiative and referendum.

House Bill No. 21505, as reported out by the Committee on Suffrage and Electoral Reforms
last December 14, 1988, Mr. Speaker, is the response to such a constitutional duty.

Mr. Speaker, if only to allay apprehensions, allow me to show where initiative and
referendum under Philippine law has occurred.

Mr. Speaker, the system of initiative and referendum is not new. In a very limited extent, the
system is provided for in our Local Government Code today. On initiative, for instance,
Section 99 of the said code vests in the barangay assembly the power to initiate legislative
processes, to hold plebiscites and to hear reports of the sangguniang barangay. There are
variations of initiative and referendum. The barangay assembly is composed of all persons
who have been actual residents of the barangay for at least six months, who are at least 15
years of age and citizens of the Philippines. The holding of barangay plebiscites and
referendum is also provided in Sections 100 and 101 of the same Code.

Mr. Speaker, for brevity I will not read the pertinent quotations but will just submit the same
to the Secretary to be incorporated as part of my speech.
To continue, Mr. Speaker these same principles are extensively applied by the Local
Government Code as it is now mandated by the 1987 Constitution.

In other jurisdictions, Mr. Speaker, we have ample examples of initiative and referendum
similar to what is now contained in House Bill No. 21505. As in the 1987 Constitutions and
House Bill No. 21505, the various constitutions of the states in the United States recognize
the right of registered voters to initiate the enactment of any statute or to reject any existing
law or parts thereof in a referendum. These states are Alaska, Alabama, Montana,
Massachusetts, Dakota, Oklahoma, Oregon, and practically all other states.

In certain American states, the kind of laws to which initiative and referendum applies is also
without ay limitation, except for emergency measures, which is likewise incorporated in
Section 7(b) of House Bill No. 21505.

The procedure provided by the House bill – from the filing of the petition, the requirement of
a certain percentage of supporters to present a proposition to submission to electors – is
substantially similar to those of many American laws. Mr. Speaker, those among us who may
have been in the United States, particularly in California, during election time or last
November during the election would have noticed different propositions posted in the city
walls. They were propositions submitted by the people for incorporation during the voting.
These were in the nature of initiative, Mr. Speaker.

Although an infant then in Philippine political structure, initiative and referendum is a tried
and tested system in other jurisdictions, and House Bill No. 21505 through the various
consolidated bills is patterned after American experience in a great respect.

What does the bill essentially say, Mr. Speaker? Allow me to try to bring our colleagues
slowly through the bill. The bill has basically only 12 sections. The constitutional
Commissioners, Mr. Speaker, saw this system of initiative and referendum as an instrument
which can be used should the legislature show itself indifferent to the needs of the people.
That is why, Mr. Speaker, it may be timely, since we seem to be amply criticized, as regards
our responsiveness, to pass this bill on referendum and initiative now. While indifference
would not be an appropriate term to use at this time, and surely it is not the case although we
are so criticized, one must note that it is a felt necessity of our times that laws need to be
proposed and adopted at the soonest possible time to spur economic development,
safeguard individual rights and liberties, and share governmental power with the people.

With the legislative powers of the President gone, we alone, together with the Senators when
they are minded to agree with us, are left with the burden of enacting the needed legislation.

Let me now bring our colleagues, Mr. Speaker, to the process advocated by the bill.

First, initiative and referendum, Mr. Speaker, is defined. Initiative essentially is what the term
connotes. It means that the people, on their own political judgment, submit fore the
consideration and voting of the general electorate a bill or a piece of legislation.

Under House Bill No. 21505, there are three kinds of initiative. One is an initiative to amend
the Constitution. This can occur once every five years. Another is an initiative to amend
statutes that we may have approved. Had this bill been an existing law, Mr. Speaker, it is
most likely that an overwhelming majority of the barangays in the Philippines would have
approved by initiative the matter of direct voting.
The third mode of initiative, Mr. Speaker, refers to a petition proposing to enact regional,
provincial, city, municipal or barangay laws or ordinances. It comes from the people and it
must be submitted directly to the electorate. The bill gives a definite procedure and allows
the COMELEC to define rules and regulations to give teeth to the power of initiative.

On the other hand, referendum, Mr. Speaker, is the power of the people to approve or reject
something that Congress has already approved.

For instance, Mr. Speaker, when we divide the municipalities or the barangays into two or
three, we must first get the consent of the people affected through plebiscite or referendum.

Referendum is a mode of plebiscite, Mr. Speaker. However, referendum can also be

petitioned by the people if, for instance, they do not life the bill on direct elections and it is
approved subsequently by the Senate. If this bill had already become a law, then the people
could petition that a referendum be conducted so that the acts of Congress can be
appropriately approved or rebuffed.

The initial stage, Mr. Speaker, is what we call the petition. As envisioned in the bill, the
initiative comes from the people, from registered voters of the country, by presenting a
proposition so that the people can then submit a petition, which is a piece of paper that
contains the proposition. The proposition in the example I have been citing is whether there
should be direct elections during the barangay elections. So the petition must be filed in the
appropriate agency and the proposition must be clear stated. It can be tedious but that is
how an effort to have direct democracy operates.

Section 4 of the bill gives requirements, Mr. Speaker. It will not be all that easy to have
referendum or initiative petitioned by the people. Under Section 4 of the committee report,
we are given certain limitations. For instance, to exercise the power of initiative or
referendum, at least 10 percent of the total number of registered voters, of which every
legislative district is represented by at least 3 percent of the registered voters thereof, shall
sign a petition. These numbers, Mr. Speaker, are not taken from the air. They are mandated
by the Constitution. There must be a requirement of 10 percent for ordinary laws and 3
percent representing all districts. The same requirement is mutatis mutandis or appropriately
modified and applied to the different sections. So if it is, for instance, a petition on initiative or
referendum for a barangay, there is a 10 percent or a certain number required of the voters
of the barangay. If it is for a district, there is also a certain number required of all towns of the
district that must seek the petition. If it is for a province then again a certain percentage of
the provincial electors is required. All these are based with reference to the constitutional
mandate.

The conduct of the initiative and referendum shall be supervised and shall be upon the call of
the Commission on Elections. However, within a period of 30 days from receipt of the
petition, the COMELEC shall determine the sufficiency of the petition, publish the same and
set the date of the referendum which shall not be earlier than 45 days but not later than 90
days from the determination by the commission of the sufficiency of the petition. Why is this
so, Mr. Speaker? The petition must first be determined by the commission as to its
sufficiency because our Constitution requires that no bill can be approved unless it contains
one subject matter. It is conceivable that in the fervor of an initiative or referendum, Mr.
Speaker, there may be more than two topics sought to be approved and that cannot be
allowed. In fact, that is one of the prohibitions under this referendum and initiative bill. When
a matter under initiative or referendum is approved by the required number of votes, Mr.
Speaker, it shall become effective 15 days following the completion of its publication in
 the Official Gazette. Effectively then, Mr. Speaker, all the bill seeks to do is to enlarge and
recognize the legislative powers of the Filipino people.

Mr. Speaker, I think this Congress, particularly this House, cannot ignore or cannot be
insensitive to the call for initiative and referendum. We should have done it in 1987 but that is
past. Maybe we should have done it in 1988 but that too had already passed, but it is only
February 1989, Mr. Speaker, and we have enough time this year at least to respond to the
need of our people to participate directly in the work of legislation.

For these reasons, Mr. Speaker, we urge and implore our colleagues to approve House Bill
No. 21505 as incorporated in Committee Report No. 423 of the Committee on Suffrage and
Electoral Reforms.

In closing, Mr. Speaker, I also request that the prepared text of my speech, together with the
footnotes since they contain many references to statutory history and foreign jurisdiction, be
reproduced as part of the Record for future purposes.

Equally unequivocal on the intent of R.A. 6735 is the sponsorship speech of former
Representative Salvador Escudero III, viz:42

SPONSORSHIP REMARKS OF REP. ESCUDERO

MR. ESCUDERO. Thank you, Mr. Speaker.

Mr. Speaker and my dear colleagues: Events in recent years highlighted the need to heed
the clamor of the people for a truly popular democracy. One recalls the impatience of those
who actively participated in the parliament of the streets, some of whom are now
distinguished Members of this Chamber. A substantial segment of the population feel
increasingly that under the system, the people have the form but not the reality or substance
of democracy because of the increasingly elitist approach of their chosen Representatives to
many questions vitally affecting their lives. There have been complaints, not altogether
unfounded, that many candidates easily forge their campaign promises to the people once
elected to office. The 1986 Constitutional Commission deemed it wise and proper to provide
for a means whereby the people can exercise the reserve power to legislate or propose
amendments to the Constitution directly in case their chose Representatives fail to live up to
their expectations. That reserve power known as initiative is explicitly recognized in three
articles and four sections of the 1987 Constitution, namely: Article VI Section 1; the same
article, Section 312; Article X, Section 3; and Article XVII, Section 2. May I request that he
explicit provisions of these three articles and four sections be made part of my sponsorship
speech, Mr. Speaker.

These constitutional provisions are, however, not self-executory. There is a need for an
implementing law that will give meaning and substance to the process of initiative and
referendum which are considered valuable adjuncts to representative democracy. It is
needless to state that this bill when enacted into law will probably open the door to strong
competition of the people, like pressure groups, vested interests, farmers' group, labor
groups, urban dwellers, the urban poor and the like, with Congress in the field of legislation.

Such probability, however, pales in significance when we consider that through this bill we
can hasten the politization of the Filipino which in turn will aid government in forming an
enlightened public opinion, and hopefully produce better and more responsive and
acceptable legislations.
 Furthermore, Mr. Speaker, this would give the parliamentarians of the streets and cause-
oriented groups an opportunity to articulate their ideas in a truly democratic forum, thus, the
competition which they will offer to Congress will hopefully be a healthy one. Anyway, in an
atmosphere of competition there are common interests dear to all Filipinos, and the pursuit of
each side's competitive goals can still take place in an atmosphere of reason and
moderation.

Mr. Speaker and my dear colleagues, when the distinguished Gentleman from Camarines
Sur and this Representation filed our respective versions of the bill in 1987, we were hoping
that the bill would be approved early enough so that our people could immediately use the
agrarian reform bill as an initial subject matter or as a take-off point.

However, in view of the very heavy agenda of the Committee on Local Government, it took
sometime before the committee could act on these. But as they say in Tagalog, huli man
daw at magaling ay naihahabol din. The passage of this bill therefore, my dear colleagues,
could be one of our finest hours when we can set aside our personal and political
consideration for the greater good of our people. I therefore respectfully urge and plead that
this bill be immediately approved.

Thank you, Mr. Speaker.

We cannot dodge the duty to give effect to this intent for the "[c]ourts have the duty to interpret
the law as legislated and when possible, to honor the clear meaning of statutes as revealed by its
language, purpose and history."43

The tragedy is that while conceding this intent, the six (6) justices, nevertheless, ruled that "x x x
R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned" for the following reasons: (1) Section 2 of
the Act does not suggest an initiative on amendments to the Constitution; (2) the Act does not
provide for the contents of the petition for initiative on the Constitution; and (3) while the Act
provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and
Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution.

To say the least, these alleged omissions are too weak a reason to throttle the right of the
sovereign people to amend the Constitution through initiative. R.A. 6735 clearly expressed
the legislative policy for the people to propose amendments to the Constitution by direct action.
The fact that the legislature may have omitted certain details in implementing the people's initiative
in R.A. 6735, does not justify the conclusion that, ergo, the law is insufficient. What were omitted
were mere details and not fundamental policies which Congress alone can and has
determined. Implementing details of a law can be delegated to the COMELEC and can be the
subject of its rule-making power. Under Section 2(1), Article IX-C of the Constitution, the COMELEC
has the power to enforce and administer all laws and regulations relative to the conduct of initiatives.
Its rule-making power has long been recognized by this Court. In ruling R.A. 6735 insufficient but
without striking it down as unconstitutional, the six (6) justices failed to give due recognition to the
indefeasible right of the sovereign people to amend the Constitution.

IV

The proposed constitutional changes, albeit substantial, are mere amendments and
can be undertaken through people's initiative.
Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the 1987 Constitution, only
allow the use of people's initiative to amend and not to revise the Constitution. They theorize that the
changes proposed by petitioners are substantial and thus constitute a revision which cannot be
done through people's initiative.

In support of the thesis that the Constitution bars the people from proposing substantial
amendments amounting to revision, the oppositors-intervenors cite the following deliberations
during the Constitutional Commission, viz:44

MR. SUAREZ: x x x x This proposal was suggested on the theory that this matter of initiative,
which came about because of the extraordinary developments this year, has to be separated
from the traditional modes of amending the Constitution as embodied in Section 1. The
Committee members felt that this system of initiative should not extend to the revision of the
entire Constitution, so we removed it from the operation of Section 1 of the proposed Article
on Amendment or Revision.

xxxxxxxxxxxx

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative
as a separate section in the Article on Amendment. Would the sponsor be amenable to
accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of
Section 1, instead of setting it up as another separate section as if it were a self-executing
provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process
of initiative is limited to the matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense that was conveyed by
the Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of
modes (a) and (b) in Section 1 to include the process of revision; whereas the process of
initiation to amend, which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.

Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the same view:45

MR. DAVIDE. x x x x We are limiting the right of the people, by initiative, to submit a proposal
for amendment only, not for revision, only once every five years x x x x

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1

refers to "amendment." Does it cover the word "revision" as defined by Commissioner Padilla
when he made the distinction between the words "amendments" and "revision?"

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not
"revision."

Commissioner (now a distinguished Associate Justice of this Court) Adolfo S. Azcuna also clarified
this point46 -
 MR. OPLE. To more closely reflect the intent of Section 2, may I suggest that we add to
"Amendments" "OR REVISIONS OF" to read: "Amendments OR REVISION OF this
Constitution."

MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative.

MR. OPLE. How is that again?

MR. AZCUNA. It was not our intention to allow a revision of the Constitution by initiative but
merely by amendments.

MR. BENGZON. Only by amendments.

MR. AZCUNA. I remember that was taken on the floor.

MR. RODRIGO. Yes, just amendments.

The oppositors-intervenors then point out that by their proposals, petitioners will "change the very
system of government from presidential to parliamentary, and the form of the legislature from
bicameral to unicameral," among others. They allegedly seek other major revisions like the inclusion
of a minimum number of inhabitants per district, a change in the period for a term of a Member of
Parliament, the removal of the limits on the number of terms, the election of a Prime Minister who
shall exercise the executive power, and so on and so forth.47 In sum, oppositors-intervenors submit
that "the proposed changes to the Constitution effect major changes in the political structure and
system, the fundamental powers and duties of the branches of the government, the political rights of
the people, and the modes by which political rights may be exercised."48 They conclude that they are
substantial amendments which cannot be done through people's initiative. In other words, they posit
the thesis that only simple but not substantial amendments can be done through people's
initiative.

With due respect, I disagree. To start with, the words "simple" and "substantial" are not subject to
any accurate quantitative or qualitative test. Obviously, relying on the quantitative test, oppositors-
intervenors assert that the amendments will result in some one hundred (100) changes in the
Constitution. Using the same test, however, it is also arguable that petitioners seek to change
basically only two (2) out of the eighteen (18) articles of the 1987 Constitution, i.e. Article VI
(Legislative Department) and Article VII (Executive Department), together with the complementary
provisions for a smooth transition from a presidential bicameral system to a parliamentary
unicameral structure. The big bulk of the 1987 Constitution will not be affected including Articles
I (National Territory), II (Declaration of Principles and State Policies), III (Bill of Rights), IV
(Citizenship), V (Suffrage), VIII (Judicial Department), IX (Constitutional Commissions), X (Local
Government), XI (Accountability of Public Officers), XII (National Economy and Patrimony), XIII
(Social Justice and Human Rights), XIV (Education, Science and Technology, Arts, Culture, and
Sports), XV (The Family), XVI (General Provisions), and even XVII (Amendments or Revisions). In
fine, we stand on unsafe ground if we use simple arithmetic to determine whether the
proposed changes are "simple" or "substantial."

Nor can this Court be surefooted if it applies the qualitative test to determine whether the said
changes are "simple" or "substantial" as to amount to a revision of the Constitution. The well-
regarded political scientist, Garner, says that a good constitution should contain at least three (3)
sets of provisions: the constitution of liberty which sets forth the fundamental rights of the people
and imposes certain limitations on the powers of the government as a means of securing the
enjoyment of these rights; the constitution of government which deals with the framework of
government and its powers, laying down certain rules for its administration and defining the
electorate; and, the constitution of sovereignty which prescribes the mode or procedure for
amending or revising the constitution.49 It is plain that the proposed changes will basically affect
only the constitution of government. The constitutions of liberty and sovereignty remain
unaffected. Indeed, the proposed changes will not change the fundamental nature of our state
as "x x x a democratic and republican state."50 It is self-evident that a unicameral-parliamentary
form of government will not make our State any less democratic or any less republican in character.
Hence, neither will the use of the qualitative test resolve the issue of whether the proposed
changes are "simple" or "substantial."

For this reason and more, our Constitutions did not adopt any quantitative or qualitative test to
determine whether an "amendment" is "simple" or "substantial." Nor did they provide that
"substantial" amendments are beyond the power of the people to propose to change the
Constitution. Instead, our Constitutions carried the traditional distinction between
"amendment" and "revision," i.e., "amendment" means change, including complex changes while
"revision" means complete change, including the adoption of an entirely new covenant. The legal
dictionaries express this traditional difference between "amendment" and "revision." Black's Law
Dictionary defines "amendment" as "[a] formal revision or addition proposed or made to a statute,
constitution, pleading, order, or other instrument; specifically, a change made by addition, deletion,
or correction."51 Black's also refers to "amendment" as "the process of making such a
revision."52 Revision, on the other hand, is defined as "[a] reexamination or careful review for
correction or improvement."53 In parliamentary law, it is described as "[a] general and thorough
rewriting of a governing document, in which the entire document is open to
amendment."54 Similarly, Ballentine's Law Dictionary defines "amendment" – as "[a] correction or
revision of a writing to correct errors or better to state its intended purpose"55 and "amendment of
constitution" as "[a] process of proposing, passing, and ratifying amendments to the x x x
constitution."56 In contrast, "revision," when applied to a statute (or constitution), "contemplates the
re-examination of the same subject matter contained in the statute (or constitution), and the
substitution of a new, and what is believed to be, a still more perfect rule."57

One of the most authoritative constitutionalists of his time to whom we owe a lot of intellectual
debt, Dean Vicente G. Sinco, of the University of the Philippines College of Law, (later President of
the U.P. and delegate to the Constitutional Convention of 1971) similarly spelled out the difference
between "amendment" and "revision." He opined: "the revision of a constitution, in its strict sense,
refers to a consideration of the entire constitution and the procedure for effecting such change;
while amendment refers only to particular provisions to be added to or to be altered in a
constitution."58

Our people were guided by this traditional distinction when they effected changes in our 1935
and 1973 Constitutions. In 1940, the changes to the 1935 Constitution which included the
conversion from a unicameral system to a bicameral structure, the shortening of the tenure of
the President and Vice-President from a six-year term without reelection to a four-year term with one
reelection, and the establishment of the COMELEC, together with the complementary constitutional
provisions to effect the changes, were considered amendments only, not a revision.

The replacement of the 1935 Constitution by the 1973 Constitution was, however, considered a
revision since the 1973 Constitution was "a completely new fundamental charter embodying new
political, social and economic concepts."59 Among those adopted under the 1973 Constitution were:
the parliamentary system in place of the presidential system, with the leadership in legislation and
administration vested with the Prime Minister and his Cabinet; the reversion to a single-chambered
lawmaking body instead of the two-chambered, which would be more suitable to a parliamentary
system of government; the enfranchisement of the youth beginning eighteen (18) years of age
instead of twenty-one (21), and the abolition of literacy, property, and other substantial requirements
to widen the basis for the electorate and expand democracy; the strengthening of the judiciary, the
civil service system, and the Commission on Elections; the complete nationalization of the ownership
and management of mass media; the giving of control to Philippine citizens of all
telecommunications; the prohibition against alien individuals to own educational institutions, and the
strengthening of the government as a whole to improve the conditions of the masses.60

The 1973 Constitution in turn underwent a series of significant changes in 1976, 1980, 1981, and
1984. The two significant innovations introduced in 1976 were (1) the creation of
an interim Batasang Pambansa, in place of the interim National Assembly, and (2) Amendment No.
6 which conferred on the President the power to issue decrees, orders, or letters of instruction,
whenever the Batasang Pambansa fails to act adequately on any matter for any reason that in his
judgment requires immediate action, or there is grave emergency or threat or imminence thereof,
with such decrees, or letters of instruction to form part of the law of the land. In 1980, the retirement
age of seventy (70) for justices and judges was restored. In 1981, the presidential system with
parliamentary features was installed. The transfer of private land for use as residence to natural-born
citizens who had lost their citizenship was also allowed. Then, in 1984, the membership of the
Batasang Pambansa was reapportioned by provinces, cities, or districts in Metro Manila instead of
by regions; the Office of the Vice-President was created while the executive committee was
abolished; and, urban land reform and social housing programs were strengthened.61 These
substantial changes were simply considered as mere amendments.

In 1986, Mrs. Corazon C. Aquino assumed the presidency, and repudiated the 1973 Constitution.
She governed under Proclamation No. 3, known as the Freedom Constitution.

In February 1987, the new constitution was ratified by the people in a plebiscite and superseded
the Provisional or Freedom Constitution. Retired Justice Isagani Cruz underscored the outstanding
features of the 1987 Constitution which consists of eighteen articles and is excessively long
compared to the Constitutions of 1935 and 1973, on which it was largely based. Many of the original
provisions of the 1935 Constitution, particularly those pertaining to the legislative and executive
departments, have been restored because of the revival of the bicameral Congress of the
Philippines and the strictly presidential system. The independence of the judiciary has been
strengthened, with new provisions for appointment thereto and an increase in its authority, which
now covers even political questions formerly beyond its jurisdiction. While many provisions of the
1973 Constitution were retained, like those on the Constitutional Commissions and local
governments, still the new 1987 Constitution was deemed as a revision of the 1973 Constitution.

It is now contended that this traditional distinction between amendment and revision was
abrogated by the 1987 Constitution. It is urged that Section 1 of Article XVII gives the power to
amend or revise to Congress acting as a constituent assembly, and to a Constitutional Convention
duly called by Congress for the purpose. Section 2 of the same Article, it is said, limited the people's
right to change the Constitution via initiative through simple amendments. In other words,
the people cannot propose substantial amendments amounting to revision.

With due respect, I do not agree. As aforestated, the oppositors-intervenors who peddle the above
proposition rely on the opinions of some Commissioners expressed in the course of the debate on
how to frame the amendment/revision provisions of the 1987 Constitution. It is familiar learning,
however, that opinions in a constitutional convention, especially if inconclusive of an issue, are
of very limited value as explaining doubtful phrases, and are an unsafe guide (to the intent of the
people) since the constitution derives its force as a fundamental law, not from the action of the
convention but from the powers (of the people) who have ratified and adopted it.62 "Debates in the
constitutional convention 'are of value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law.'"63 Indeed, a careful perusal of the debates of
the Constitutional Commissioners can likewise lead to the conclusion that there was no
abandonment of the traditional distinction between "amendment" and "revision." For during
the debates, some of the commissioners referred to the concurring opinion of former Justice Felix Q.
Antonio in Javellana v. The Executive Secretary,64 that stressed the traditional distinction
between amendment and revision, thus:65

MR. SUAREZ: We mentioned the possible use of only one term and that is, "amendment."
However, the Committee finally agreed to use the terms – "amendment" or "revision" when
our attention was called by the honorable Vice-President to the substantial difference in the
connotation and significance between the said terms. As a result of our research, we came
up with the observations made in the famous – or notorious – Javellana doctrine, particularly
the decision rendered by Honorable Justice Makasiar,66 wherein he made the following
distinction between "amendment" and "revision" of an existing Constitution: "Revision" may
involve a rewriting of the whole Constitution. On the other hand, the act of amending a
constitution envisages a change of specific provisions only. The intention of an act to amend
is not the change of the entire Constitution, but only the improvement of specific parts or the
addition of provisions deemed essential as a consequence of new conditions or the
elimination of parts already considered obsolete or unresponsive to the needs of the times.

The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely
new fundamental Charter embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be
employed in the formulation of the Article governing amendments or revisions to the new
Constitution.

To further explain "revision," former Justice Antonio, in his concurring opinion, used an analogy –
"When a house is completely demolished and another is erected on the same location, do you have
a changed, repaired and altered house, or do you have a new house? Some of the material
contained in the old house may be used again, some of the rooms may be constructed the same,
but this does not alter the fact that you have altogether another or a new house."67

Hence, it is arguable that when the framers of the 1987 Constitution used the word "revision," they
had in mind the "rewriting of the whole Constitution," or the "total overhaul of the
Constitution." Anything less is an "amendment" or just "a change of specific provisions only," the
intention being "not the change of the entire Constitution, but only the improvement of specific parts
or the addition of provisions deemed essential as a consequence of new conditions or the
elimination of parts already considered obsolete or unresponsive to the needs of the times." Under
this view, "substantial" amendments are still "amendments" and thus can be proposed by the
people via an initiative.

As we cannot be guided with certainty by the inconclusive opinions of the Commissioners on

the difference between "simple" and "substantial" amendments or whether "substantial"
amendments amounting to revision are covered by people's initiative, it behooves us to follow
the cardinal rule in interpreting Constitutions, i.e., construe them to give effect to the intention of
the people who adopted it. The illustrious Cooley explains its rationale well, viz:68

x x x the constitution does not derive its force from the convention which framed, but from the
people who ratified it, the intent to be arrived at is that of the people, and it is not to be
supposed that they have looked for any dark or abstruse meaning in the words employed,
 but rather that they have accepted them in the sense most obvious to the common
understanding, and ratified the instrument in the belief that that was the sense designed to
be conveyed. These proceedings therefore are less conclusive of the proper construction of
the instrument than are legislative proceedings of the proper construction of a statute; since
in the latter case it is the intent of the legislature we seek, while in the former we are
endeavoring to arrive at the intent of the people through the discussion and deliberations of
their representatives. The history of the calling of the convention, the causes which led to it,
and the discussions and issues before the people at the time of the election of the delegates,
will sometimes be quite as instructive and satisfactory as anything to be gathered form the
proceedings of the convention.

Corollarily, a constitution is not to be interpreted on narrow or technical principles, but liberally and
on broad general lines, to accomplish the object of its establishment and carry out the great
principles of government – not to defeat them.69 One of these great principles is the sovereignty
of the people.

Let us now determine the intent of the people when they adopted initiative as a mode to amend the
1987 Constitution. We start with the Declaration of Principles and State Policies which Sinco
describes as "the basic political creed of the nation"70 as it "lays down the policies that government is
bound to observe."71 Section 1, Article II of the 1935 Constitution and Section 1, Article II of the 1973
Constitution, similarly provide that "the Philippines is a republican state. Sovereignty resides in
the people and all government authority emanates from them." In a republican state, the power of
the sovereign people is exercised and delegated to their representatives. Thus in Metropolitan
Transportation Service v. Paredes, this Court held that "a republican state, like the Philippines x x x
(is) derived from the will of the people themselves in freely creating a government 'of the people, by
the people, and for the people' – a representative government through which they have agreed to
exercise the powers and discharge the duties of their sovereignty for the common good and general
welfare."72

In both the 1935 and 1973 Constitutions, the sovereign people delegated to Congress or to a
convention, the power to amend or revise our fundamental law. History informs us how this
delegated power to amend or revise the Constitution was abused particularly during the
Marcos regime. The Constitution was changed several times to satisfy the power requirements of
the regime. Indeed, Amendment No. 6 was passed giving unprecedented legislative powers to then
President Ferdinand E. Marcos. A conspiracy of circumstances from above and below, however,
brought down the Marcos regime through an extra constitutional revolution, albeit a peaceful one
by the people. A main reason for the people's revolution was the failure of the representatives
of the people to effectuate timely changes in the Constitution either by acting as a
constituent assembly or by calling a constitutional convention. When the representatives of the
people defaulted in using this last peaceful process of constitutional change, the sovereign
people themselves took matters in their own hands. They revolted and replaced the 1973
Constitution with the 1987 Constitution.

It is significant to note that the people modified the ideology of the 1987 Constitution as it
stressed the power of the people to act directly in their capacity as sovereign people.
Correspondingly, the power of the legislators to act as representatives of the people in the
matter of amending or revising the Constitution was diminished for the spring cannot rise
above its source. To reflect this significant shift, Section 1, Article II of the 1987 Constitution
was reworded. It now reads: "the Philippines is a democratic and republican state. Sovereignty
resides in the people and all government authority emanates from them." The commissioners of the
1986 Constitutional Commission explained the addition of the word "democratic," in our first
Declaration of Principles, viz:
MR. NOLLEDO. I am putting the word "democratic" because of the provisions that we are now
adopting which are covering consultations with the people. For example, we have provisions on
recall, initiative, the right of the people even to participate in lawmaking and other instances that
recognize the validity of interference by the people through people's organizations x x x x73

MR. OPLE. x x x x The Committee added the word "democratic" to "republican," and,
therefore, the first sentence states: "The Philippines is a republican and democratic state x x
xx

May I know from the committee the reason for adding the word "democratic" to "republican"?
The constitutional framers of the 1935 and 1973 Constitutions were content with
"republican." Was this done merely for the sake of emphasis?

MR. NOLLEDO. x x x x "democratic" was added because of the need to emphasize

people power and the many provisions in the Constitution that we have approved
related to recall, people's organizations, initiative and the like, which recognize the
participation of the people in policy-making in certain circumstances x x x x

MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a
need x x x x

MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is understood

as participatory democracy. 74 (emphasis supplied)

The following exchange between Commissioners Rene V. Sarmiento and Adolfo S. Azcuna is of the
same import:75

MR. SARMIENTO. When we speak of republican democratic state, are we referring to

representative democracy?

MR. AZCUNA. That is right.

MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935
Constitutions which used the words "republican state" because "republican state" would refer
to a democratic state where people choose their representatives?

MR. AZCUNA. We wanted to emphasize the participation of the people in government.

MR. SARMIENTO. But even in the concept "republican state," we are stressing the
participation of the people x x x x So the word "republican" will suffice to cover popular
representation.

MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of
the introduction of the aspects of direct democracy such as initiative, referendum or recall,
it was necessary to emphasize the democratic portion of republicanism, of representative
democracy as well. So, we want to add the word "democratic" to emphasize that in this
new Constitution there are instances where the people would act directly, and not
through their representatives. (emphasis supplied)
Consistent with the stress on direct democracy, the systems of initiative, referendum, and recall
were enthroned as polestars in the 1987 Constitution. Thus, Commissioner Blas F. Ople who
introduced the provision on people's initiative said:76

MR. OPLE. x x x x I think this is just the correct time in history when we should introduce an
innovative mode of proposing amendments to the Constitution, vesting in the people and
their organizations the right to formulate and propose their own amendments and
revisions of the Constitution in a manner that will be binding upon the government. It is not
that I believe this kind of direct action by the people for amending a constitution will be
needed frequently in the future, but it is good to know that the ultimate reserves of
sovereign power still rest upon the people and that in the exercise of that power, they
can propose amendments or revision to the Constitution. (emphasis supplied)

Commissioner Jose E. Suarez also explained the people's initiative as a safety valve, as a
peaceful way for the people to change their Constitution, by citing our experiences under the Marcos
government, viz:77

MR. SUAREZ. We agree to the difficulty in implementing this particular provision, but we are
providing a channel for the expression of the sovereign will of the people through this
initiative system.

MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient channel for expression of
the will of the people, particularly in the amendment or revision of the Constitution?

MR. SUAREZ. Under normal circumstances, yes. But we know what happened during the
20 years under the Marcos administration. So, if the National Assembly, in a manner
of speaking, is operating under the thumb of the Prime Minister or the President as the case
may be, and the required number of votes could not be obtained, we would have to provide
for a safety valve in order that the people could ventilate in a very peaceful way their desire
for amendment to the Constitution.

It is very possible that although the people may be pressuring the National Assembly
to constitute itself as a constituent assembly or to call a constitutional convention, the
members thereof would not heed the people's desire and clamor. So this is a third
avenue that we are providing for the implementation of what is now popularly known as
people's power. (emphasis supplied)

Commissioner Regalado E. Maambong opined that the people's initiative could avert a
revolution, viz:78

MR. MAAMBONG. x x x x the amending process of the Constitution could actually avert a
revolution by providing a safety valve in bringing about changes in the Constitution through
pacific means. This, in effect, operationalizes what political law authors call the "prescription
of sovereignty." (emphasis supplied)

The end result is Section 2, Article XVII of the 1987 Constitution which expressed the right of the
sovereign people to propose amendments to the Constitution by direct action or through initiative. To
that extent, the delegated power of Congress to amend or revise the Constitution has to be
adjusted downward. Thus, Section 1, Article VI of the 1987 Constitution has to be reminted and
now provides: "The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except to the extent reserved to the people
by the provision on initiative and referendum."
Prescinding from these baseline premises, the argument that the people through initiative
cannot propose substantial amendments to change the Constitution turns sovereignty on its
head. At the very least, the submission constricts the democratic space for the exercise of the
direct sovereignty of the people. It also denigrates the sovereign people who they claim can only be
trusted with the power to propose "simple" but not "substantial" amendments to the Constitution.
According to Sinco, the concept of sovereignty should be strictly understood in its legal meaning as it
was originally developed in law.79 Legal sovereignty, he explained, is "the possession of unlimited
power to make laws. Its possessor is the legal sovereign. It implies the absence of any other party
endowed with legally superior powers and privileges. It is not subject to law 'for it is the author
and source of law.' Legal sovereignty is thus the equivalent of legal omnipotence."80

To be sure, sovereignty or popular sovereignty, emphasizes the supremacy of the people's will over
the state which they themselves have created. The state is created by and subject to the will of the
people, who are the source of all political power. Rightly, we have ruled that "the sovereignty of our
people is not a kabalistic principle whose dimensions are buried in mysticism. Its metes and bounds
are familiar to the framers of our Constitutions. They knew that in its broadest sense, sovereignty is
meant to be supreme, the jus summi imperu, the absolute right to govern."81

James Wilson, regarded by many as the most brilliant, scholarly, and visionary lawyer in the United
States in the 1780s, laid down the first principles of popular sovereignty during the Pennsylvania
ratifying convention of the 1787 Constitution of the United States:82

There necessarily exists, in every government, a power from which there is no appeal, and
which, for that reason, may be termed supreme, absolute, and uncontrollable.

x x x x Perhaps some politician, who has not considered with sufficient accuracy our political
systems, would answer that, in our governments, the supreme power was vested in the
constitutions x x x x This opinion approaches a step nearer to the truth, but does not reach
it. The truth is, that in our governments, the supreme, absolute, and uncontrollable
power remains in the people. As our constitutions are superior to our legislatures, so the
people are superior to our constitutions. Indeed the superiority, in this last instance, is much
greater; for the people possess over our constitution, control in act, as well as right.
(emphasis supplied)

I wish to reiterate that in a democratic and republican state, only the people is sovereign - - -
not the elected President, not the elected Congress, not this unelected Court. Indeed, the
sovereignty of the people which is indivisible cannot be reposed in any organ of government. Only
its exercise may be delegated to any of them. In our case, the people delegated to Congress
the exercise of the sovereign power to amend or revise the Constitution. If Congress, as
delegate, can exercise this power to amend or revise the Constitution, can it be argued that the
sovereign people who delegated the power has no power to substantially amend the Constitution by
direct action? If the sovereign people do not have this power to make substantial amendments to the
Constitution, what did it delegate to Congress? How can the people lack this fraction of a power to
substantially amend the Constitution when by their sovereignty, all power emanates from them? It
will take some mumbo jumbo to argue that the whole is lesser than its part. Let Sinco clinch the
point:83

But although possession may not be delegated, the exercise of sovereignty often is. It is
delegated to the organs and agents of the state which constitute its government, for it is only
through this instrumentality that the state ordinarily functions. However ample and
complete this delegation may be, it is nevertheless subject to withdrawal at any time
by the state. On this point Willoughby says:
 Thus, States may concede to colonies almost complete autonomy of government
and reserve to themselves a right to control of so slight and so negative a character
as to make its exercise a rare and improbable occurrence; yet so long as such right
of control is recognized to exist, and the autonomy of the colonies is conceded to be
founded upon a grant and continuing consent of the mother countries the sovereignty
of those mother countries over them is complete and they are to be considered as
possessing only administrative autonomy and not political independence.

At the very least, the power to propose substantial amendments to the Constitution is shared
with the people. We should accord the most benign treatment to the sovereign power of the
people to propose substantial amendments to the Constitution especially when the proposed
amendments will adversely affect the interest of some members of Congress. A contrary
approach will suborn the public weal to private interest and worse, will enable Congress (the
delegate) to frustrate the power of the people to determine their destiny (the principal).

All told, the teaching of the ages is that constitutional clauses acknowledging the right of the people
to exercise initiative and referendum are liberally and generously construed in favor of the
people.84 Initiative and referendum powers must be broadly construed to maintain maximum power
in the people.85 We followed this orientation in Subic Bay Metropolitan Authority v. Commission on
Elections.86 There is not an iota of reason to depart from it.

The issues at bar are not political questions.

Petitioners submit that "[t]he validity of the exercise of the right of the sovereign people to amend the
Constitution and their will, as expressed by the fact that over six million registered voters indicated
their support of the Petition for Initiative, is a purely political question which is beyond even the
very long arm of this Honorable Court's power of judicial review. Whether or not the 1987
Constitution should be amended is a matter which the people and the people alone must resolve in
their sovereign capacity."87 They argue that "[t]he power to propose amendments to the Constitution
is a right explicitly bestowed upon the sovereign people. Hence, the determination by the people to
exercise their right to propose amendments under the system of initiative is a sovereign act and falls
squarely within the ambit of a 'political question.'"88

The petitioners cannot be sustained. This issue has long been interred by Sanidad v. Commission
on Elections, viz:89

Political questions are neatly associated with the wisdom, not 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.

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 proposals to the people ultimately
 lie in the judgment of the latter. A clear Descartes fallacy of vicious cycle. 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,
that constitutional provision has been followed or not is indisputably a proper subject of
inquiry, not by the people themselves – of course – who exercise no power of judicial review,
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 priori not a posteriori, i.e.,
before the submission to and ratification by the people.

In the instant case, the Constitution sets in black and white the requirements for the exercise of the
people's initiative to amend the Constitution. The amendments must be proposed by the people
"upon a petition of at least twelve per centum of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of the registered voters therein.
No amendment under this section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter."90Compliance with these
requirements is clearly a justiciable and not a political question. Be that as it may, how the issue will
be resolved by the people is addressed to them and to them alone.

VI

Whether the Petition for Initiative filed before the COMELEC complied with Section 2, Article
XVII of the Constitution and R.A. 6735 involves contentious issues of fact which should first
be resolved by the COMELEC.

Oppositors-intervenors impugn the Petition for Initiative as it allegedly lacks the required number of
signatures under Section 2, Article XVII of the Constitution. Said provision requires that the petition
for initiative be supported by at least twelve per cent (12%) of the total number of registered voters,
of which every legislative district must be represented by at least three per cent (3%) of the
registered voters therein. Oppositors-intervenors contend that no proper verification of
signatures was done in several legislative districts. They assert that mere verification of the names
listed on the signature sheets without verifying the signatures reduces the signatures submitted for
their respective legislative districts to mere scribbles on a piece of paper.

Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a certification dated August 23, 2006
issued by Atty. Marlon S. Casquejo, Election Officer IV, Third District and OIC, First and Second
District, Davao City, stating that his office has not verified the signatures submitted by the
proponents of the people's initiative. The certification reads:

This is to CERTIFY that this office (First, Second and Third District, Davao City) HAS NOT
VERIFIED the signatures of registered voters as per documents submitted in this office by
the proponents of the People's Initiative. Consequently, NO ELECTION DOCUMENTS
AND/OR ORDER ISSUED BY HIGHER SUPERIORSused as basis for such verification of
signatures.91

Senate Minority Leader Aquilino Pimentel, Jr., among others, further clarified that although Atty.
Casquejo and Reynne Joy B. Bullecer, Acting Election Officer IV, First District, Davao City, later
issued certifications stating that the Office of the City Election Officer has examined the list of
individuals appearing in the signature sheets,92 the certifications reveal that the office had verified
only the names of the signatories, but not their signatures. Oppositors-intervenors submit that not
only the names of the signatories should be verified, but also their signatures to ensure the identities
of the persons affixing their signatures on the signature sheets.
Oppositor-intervenor Luwalhati Antonino also alleged that petitioners failed to obtain the signatures
of at least three per cent (3%) of the total number of registered voters in the First Legislative District
of South Cotabato. For the First District of South Cotabato, petitioners submitted 3,182 signatures
for General Santos City, 2,186 signatures for Tupi, 3,308 signatures for Tampakan and 10,301
signatures for Polomolok, or 18,977 signatures out of 359,488 registered voters of said district.
Antonino, however, submitted to this Court a copy of the certification by Glory D. Rubio, Election
Officer III, Polomolok, dated May 8, 2006, showing that the signatures from Polomolok were not
verified because the Book of Voters for the whole municipality was in the custody of the Clerk of
Court of the Regional Trial Court, Branch 38, Polomolok, South Cotabato.93 Excluding the signatures
from Polomolok from the total number of signatures from the First District of South Cotabato would
yield only a total of 8,676 signatures which falls short of the three per cent (3%) requirement for the
district.

Former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino likewise submitted to this
Court a certification issued by Atty. Stalin A. Baguio, City Election Officer IV, Cagayan de Oro City,
stating that the list of names appearing on the signature sheets corresponds to the names of
registered voters in the city, thereby implying that they have not actually verified the signatures.94

The argument against the sufficiency of the signatures is further bolstered by Alternative Law
Groups, Inc., which submitted copies of similarly worded certifications from the election officers from
Zamboanga del Sur95 and from Compostela Valley.96 Alternative Law Groups, Inc., further assails the
regularity of the verification process as it alleged that verification in some areas were conducted by
Barangay officials and not by COMELEC election officers. It filed with this Court copies of
certifications from Sulu and Sultan Kudarat showing that the verification was conducted by local
officials instead of COMELEC personnel.97

Petitioners, on the other hand, maintain that the verification conducted by the election officers
sufficiently complied with the requirements of the Constitution and the law on initiative.

Contravening the allegations of oppositors-intervenors on the lack of verification in Davao City and in
Polomolok, South Cotabato, petitioner Aumentado claimed that the same election officers cited by
the oppositors-intervenors also issued certifications showing that they have verified the signatures
submitted by the proponents of the people's initiative. He presented copies of the certifications
issued by Atty. Marlon S. Casquejo for the Second and Third Legislative Districts of Davao City
stating that he verified the signatures of the proponents of the people's initiative. His certification for
the Second District states:

This is to CERTIFY that this Office has examined the list of individuals as appearing in the
Signature Sheets of the Registered Voters of District II, Davao City, submitted on April 7,
2006 by MR. NONATO BOLOS, Punong Barangay, Centro, Davao City for verification which
consists of THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662) signatures.

Anent thereto, it appears that of the THIRTY THOUSAND SIX HUNDRED SIXTY-TWO
(30,662) individuals, only TWENTY-TWO THOUSAND SIX HUNDRED SIXTY-EIGHT
(22,668) individuals were found to be REGISTERED VOTERS, in the Computerized List of
Voters of SECOND CONGRESSIONAL DISTRICT, DAVAO CITY.98

It was also shown that Atty. Casquejo had issued a clarificatory certification regarding the verification
process conducted in Davao City. It reads:

Regarding the verification of the signatures of registered voters, this Office has previously
issued two (2) separate certifications for the 2nd and 3rd Districts of Davao City on April 20,
 2006 and April 26, 2006, respectively, specifically relating to the voters who supported the
people's initiative. It was stated therein that the names submitted, comprising 22,668
individual voters in the 2nd District and 18,469 individual voters in the 3rd District, were found
[to] be registered voters of the respective districts mentioned as verified by this Office based
on the Computerized List of Voters.

It must be clarified that the August 23, 2006 Certification was issued in error and by mistake
for the reason that the signature verification has not been fully completed as of that date.

I hereby CERTIFY that this Office has examined the signatures of the voters as appearing in
the signature sheets and has compared these with the signatures appearing in the book of
voters and computerized list of voters x x x 99

Petitioner Aumentado also submitted a copy of the certification dated May 8, 2006 issued by
Polomolok Election Officer Glory D. Rubio to support their claim that said officer had conducted a
verification of signatures in said area. The certification states:

This is to certify further, that the total 68,359 registered voters of this municipality, as of the
May 10, 2004 elections, 10,804 names with signatures were submitted for verification and
out of which 10,301 were found to be legitimate voters as per official list of registered voters,
which is equivalent to 15.07% of the total number of registered voters of this Municipality.100

In addition to the lack of proper verification of the signatures in numerous legislative districts,
allegations of fraud and irregularities in the collection of signatures in Makati City were cited by
Senator Pimentel, among others, to wit:

(1) No notice was given to the public, for the benefit of those who may be concerned, by the
Makati COMELEC Office that signature sheets have already been submitted to it for
"verification." The camp of Mayor Binay was able to witness the "verification process" only
because of their pro-active stance;

(2) In District 1, the proponents of charter change submitted 43,405 signatures for
verification. 36,219 alleged voters' signatures (83% of the number of signatures submitted)
were rejected outright. 7,186 signatures allegedly "passed" COMELEC's initial scrutiny.
However, upon examination of the signature sheets by Atty. Mar-len Abigail Binay, the said
7,186 signatures could not be accounted for. Atty. Binay manually counted 2,793 signatures
marked with the word "OK" and 3,443 signatures marked with a check, giving only 6,236
"apparently verified signatures." Before the COMELEC officer issued the Certification, Atty.
Binay already submitted to the said office not less than 55 letters of "signature withdrawal,"
but no action was ever taken thereon;

(3) In District 2, 29,411 signatures were submitted for verification. 23,521 alleged voters'
signatures (80% of those submitted) were rejected outright. Of the 5,890 signatures which
allegedly passed the COMELEC's initial scrutiny, some more will surely fail upon closer
examination;

(4) In the absence of clear, transparent, and uniform rules the COMELEC personnel did not
know how to treat the objections and other observations coming from the camp of Mayor
Binay. The oppositors too did not know where to go for their remedy when the COMELEC
personnel merely "listened" to their objections and other observations. As mentioned earlier,
the COMELEC personnel did not even know what to do with the many "letters of signature
withdrawal" submitted to it;
 (5) Signatures of people long dead, in prison, abroad, and other forgeries appear on the
Sigaw ng Bayan Signature Sheets. There is even a 15-year old alleged signatory;

(6) There are Signature Sheets obviously signed by one person;

(7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed the Signature
Sheets.101

Also, there are allegations that many of the signatories did not understand what they have signed as
they were merely misled into signing the signature sheets. Opposed to these allegations are rulings
that a person who affixes his signature on a document raises the presumption that the person so
signing has knowledge of what the document contains. Courts have recognized that there is great
value in the stability of records, so to speak, that no one should commit herself or himself to
something in writing unless she or he is fully aware and cognizant of the effect it may have upon her
on him.102 In the same vein, we have held that a person is presumed to have knowledge of the
contents of a document he has signed.103 But as this Court is not a trier of facts, it cannot resolve the
issue.

In sum, the issue of whether the petitioners have complied with the constitutional requirement that
the petition for initiative be signed by at least twelve per cent (12%) of the total number of registered
voters, of which every legislative district must be represented by at least three per cent (3%) of the
registered voters therein, involves contentious facts. Its resolution will require presentation of
evidence and their calibration by the COMELEC according to its rules. During the oral
argument on this case, the COMELEC, through Director Alioden Dalaig of its Law
Department, admitted that it has not examined the documents submitted by the petitioners in
support of the petition for initiative, as well as the documents filed by the oppositors to buttress their
claim that the required number of signatures has not been met. The exchanges during the oral
argument likewise clearly show the need for further clarification and presentation of evidence to
prove certain material facts.104

The only basis used by the COMELEC to dismiss the petition for initiative was this Court's ruling
in Santiago v. COMELEC that R.A. 6735 was insufficient. It has yet to rule on the sufficiency of
the form and substance of the petition. I respectfully submit that this issue should be properly
litigated before the COMELEC where both parties will be given full opportunity to prove their
allegations.

For the same reasons, the sufficiency of the Petition for Initiative and its compliance with the
requirements of R.A. 6735 on initiative and its implementing rules is a question that should be
resolved by the COMELEC at the first instance, as it is the body that is mandated by the Constitution
to administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall.105

VII

COMELEC gravely abused its discretion when it denied due course to the Lambino
and Aumentado petition.

In denying due course to the Lambino and Aumentado petition, COMELEC relied on this Court's
ruling in Santiagopermanently enjoining it from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system.
Again, I respectfully submit that COMELEC's reliance on Santiago constitutes grave abuse of
discretion amounting to lack of jurisdiction. The Santiago case did not establish the firm
doctrine that R.A. 6735 is not a sufficient law to implement the constitutional provision allowing
people's initiative to amend the Constitution. To recapitulate, the records show that in the original
decision, eight (8) justices106 voted that R.A. 6735 was not a sufficient law; five (5) justices107 voted
that said law was sufficient; and one (1) justice108 abstained from voting on the issue holding that
unless and until a proper initiatory pleading is filed, the said issue is not ripe for adjudication.109

Within the reglementary period, the respondents filed their motion for reconsideration. On June 10,
1997, the Court denied the motion. Only thirteen (13) justices resolved the motion for Justice Torres
inhibited himself.110 Of the original majority of eight (8) justices, only six (6) reiterated their
ruling that R.A. 6735 was an insufficient law. Justice Hermosisima, originally part of the majority
of eight (8) justices, changed his vote and joined the minority of five (5) justices. He opined without
any equivocation that R.A. 6735 was a sufficient law, thus:

It is one thing to utter a happy phrase from a protected cluster; another to think under fire –
to think for action upon which great interests depend." So said Justice Oliver Wendell
Holmes, and so I am guided as I reconsider my concurrence to the holding of the majority
that "R.A. No. 6735 is inadequate to cover the system of initiative on amendments to the
Constitution and to have failed to provide sufficient standard for subordinate legislation" and
now to interpose my dissent thereto.

xxx

WHEREFORE, I vote to dismiss the Delfin petition.

I vote, however, to declare R.A. No. 6735 as adequately providing the legal basis for
the exercise by the people of their right to amend the Constitution through initiative
proceedings and to uphold the validity of COMELEC Resolution No. 2300 insofar as it does
not sanction the filing of the initiatory petition for initiative proceedings to amend the
Constitution without the required names and/or signatures of at least 12% of all the
registered voters, of which every legislative district must be represented by at least 3% of the
registered voters therein. (emphasis supplied)

Justice Vitug remained steadfast in refusing to rule on the sufficiency of R.A. 6735. In fine, the final
vote on whether R.A. 6735 is a sufficient law was 6-6 with one (1) justice inhibiting himself and
another justice refusing to rule on the ground that the issue was not ripe for adjudication.

It ought to be beyond debate that the six (6) justices who voted that R.A. 6735 is an insufficient law
failed to establish a doctrine that could serve as a precedent. Under any alchemy of law, a
deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with precedential
value. The opinion of the late Justice Ricardo J. Francisco is instructive, viz:

As it stands, of the thirteen justices who took part in the deliberations on the issue of whether
the motion for reconsideration of the March 19, 1997 decision should be granted or not, only
the following justices sided with Mr. Justice Davide, namely: Chief Justice Narvasa, and
Justices Regalado, Romero, Bellosillo and Kapunan. Justices Melo, Puno, Mendoza,
Hermosisima, Panganiban and the undersigned voted to grant the motion; while Justice
Vitug "maintained his opinion that the matter was not ripe for judicial adjudication." In other
words, only five, out of the other twelve justices, joined Mr. Justice Davide's June 10, 1997
ponencia finding R.A. No. 6735 unconstitutional for its failure to pass the so called
"completeness and sufficiency standards" tests. The "concurrence of a majority of the
 members who actually took part in the deliberations" which Article VII, Section 4(2) of the
Constitution requires to declare a law unconstitutional was, beyond dispute, not complied
with. And even assuming, for the sake of argument, that the constitutional requirement on
the concurrence of the "majority" was initially reached in the March 19, 1997 ponencia, the
same is inconclusive as it was still open for review by way of a motion for reconsideration. It
was only on June 10, 1997 that the constitutionality of R.A. No. 6735 was settled with finality,
sans the constitutionally required "majority." The Court's declaration, therefore, is manifestly
grafted with infirmity and wanting in force necessitating, in my view, the reexamination of the
Court's decision in G.R. No. 127325. It behooves the Court "not to tarry any longer" nor
waste this opportunity accorded by this new petition (G.R. No. 129754) to relieve the Court's
pronouncement from constitutional infirmity.

The jurisprudence that an equally divided Court can never set a precedent is well-settled. Thus, in
the United States, an affirmance in the Federal Supreme Court upon equal division of opinion is not
an authority for the determination of other cases, either in that Court or in the inferior federal courts.
In Neil v. Biggers,111 which was a habeas corpusstate proceeding by a state prisoner, the U.S.
Supreme Court held that its equally divided affirmance of petitioner's state court conviction was
not an "actual adjudication" barring subsequent consideration by the district court on habeas corpus.
In discussing the non-binding effect of an equal division ruling, the Court reviewed the history of
cases explicating the disposition "affirmed by an equally divided Court:"

In this light, we review our cases explicating the disposition "affirmed by an equally divided
Court." On what was apparently the first occasion of an equal division, The Antelope, 10
Wheat, 66, 6 L. Ed. 268 (1825), the Court simply affirmed on the point of division without
much discussion. Id., at 126-127. Faced with a similar division during the next Term, the
Court again affirmed, Chief Justice Marshall explaining that "the principles of law which have
been argued, cannot be settled; but the judgment is affirmed, the court being divided in
opinion upon it." Etting v. Bank of United States, 11 Wheat. 59, 78, 6 L. Ed. 419
(1826). As was later elaborated in such cases, it is the appellant or petitioner who asks the
Court to overturn a lower court's decree. "If the judges are divided, the reversal cannot be
had, for no order can be made. The judgment of the court below, therefore, stands in full
force. It is indeed, the settled practice in such case to enter a judgment of affirmance; but this
is only the most convenient mode of expressing the fact that the cause is finally disposed of
in conformity with the action of the court below, and that that court can proceed to enforce its
judgment. The legal effect would be the same if the appeal, or writ of error, were
dismissed." Durant v. Essex Co., 7 Wall. 107, 112, 19 L. Ed. 154 (1869). Nor is an
affirmance by an equally divided Court entitled to precedential weight. Ohio ex rel. Eaton v.
Price, 364 U.S. 263, 264, 80 S. Ct. 1463, 1464, 4 L. Ed. 2d 1708 (1960).xxx"

This doctrine established in Neil has not been overturned and has been cited with approval in a
number of subsequent cases,112 and has been applied in various state jurisdictions.

In the case of In the Matter of the Adoption of Erin G., a Minor Child,113 wherein a putative father
sought to set aside a decree granting petition for adoption of an Indian child on grounds of
noncompliance with the requirements of Indian Child Welfare Act (ICWA), the Supreme Court of
Alaska held that its decision in In re Adoption of T.N.F. (T.N.F.),114 which lacked majority opinion
supporting holding that an action such as the putative father's would be governed by the state's
one-year statute of limitations, was not entitled to stare decisis effect. In T.N.F., a majority of the
justices sitting did not agree on a common rationale, as two of four participating justices agreed
that the state's one-year statute of limitations applied, one justice concurred in the result only, and
one justice dissented. There was no "narrower" reasoning agreed upon by all three affirming
justices. The concurring justice expressed no opinion on the statute of limitations issue, and in
agreeing with the result, he reasoned that ICWA did not give the plaintiff standing to sue.115 The two-
justice plurality, though agreeing that the state's one-year statute of limitations applied, specifically
disagreed with the concurring justice on the standing issue.116 Because a majority of the participating
justices in T.N.F. did not agree on any one ground for affirmance, it was not accorded stare decisis
effect by the state Supreme Court.

The Supreme Court of Michigan likewise ruled that the doctrine of stare decisis does not apply to
plurality decisions in which no majority of the justices participating agree to the reasoning and as
such are not authoritative interpretations binding on the Supreme Court.117

In State ex rel. Landis v. Williams,118 the Supreme Court of Florida, in an equally divided opinion
on the matter,119 held that chapter 15938, Acts of 1933 must be allowed to stand, dismissing a quo
warranto suit without prejudice. The Court held:

In a cause of original jurisdiction in this court a statute cannot be declared unconstitutional

nor its enforcement nor operation judicially interfered with, except by the concurrence of a
majority of the members of the Supreme Court sitting in the cause wherein the
constitutionality of the statute is brought in question or judicial relief sought against its
enforcement. Section 4 of Article 5, state Constitution.

Therefore in this case the concurrence of a majority of the members of this court in holding
unconstitutional said chapter 15938, supra, not having been had, it follows that the statute in
controversy must be allowed to stand and accordingly be permitted to be enforced as a
presumptively valid act of the Legislature, and that this proceeding in quo warranto must be
dismissed without prejudice. Spencer v. Hunt (Fla.) 147 So. 282. This decision is not to be
regarded as a judicial precedent on the question of constitutional law involved concerning the
constitutionality vel non of chapter 15938. State ex rel. Hampton v. McClung, 47 Fla. 224,
37 So. 51.

Quo warranto proceeding dismissed without prejudice by equal division of the court on
question of constitutionality of statute involved.

In U.S. v. Pink,120 the Court held that the affirmance by the U.S. Supreme Court by an equally
divided vote of a decision of the New York Court of Appeals that property of a New York branch of
a Russian insurance company was outside the scope of the Russian Soviet government's decrees
terminating existence of insurance companies in Russia and seizing their assets, while conclusive
and binding upon the parties as respects the controversy in that action, did not constitute an
authoritative "precedent."

In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals Second Circuit, in holding that
printed lyrics which had the same meter as plaintiffs' lyrics, but which were in form a parody of the
latter, did not constitute infringement of plaintiffs' copyrights, ruled that the prior case of Benny v.
Loew's, Inc.,122 which was affirmed by an equally divided court, was not binding upon it, viz:

Under the precedents of this court, and, as seems justified by reason as well as by authority,
an affirmance by an equally divided court is as between the parties, a conclusive
determination and adjudication of the matter adjudged; but the principles of law involved not
having been agreed upon by a majority of the court sitting prevents the case from becoming
an authority for the determination of other cases, either in this or in inferior courts.123

In Perlman v. First National Bank of Chicago,124 the Supreme Court of Illinois dismissed the
appeal as it was unable to reach a decision because two judges recused themselves and the
remaining members of the Court were so divided, it was impossible to secure the concurrence of
four judges as is constitutionally required. The Court followed the procedure employed by the U.S.
Supreme Court when the Justices of that Court are equally divided, i.e. affirm the judgment of the
court that was before it for review. The affirmance is a conclusive determination and adjudication as
between the parties to the immediate case, it is not authority for the determination of other cases,
either in the Supreme Court or in any other court. It is not "entitled to precedential weight." The legal
effect of such an affirmance is the same as if the appeal was dismissed.125

The same rule is settled in the English Courts. Under English precedents,126 an affirmance by an
equally divided Court is, as between the parties, a conclusive determination and adjudication of the
matter adjudged; but the principles of law involved not having been agreed upon by a majority of the
court sitting prevents the case from becoming an authority for the determination of other cases,
either in that or in inferior courts.

After a tour of these cases, we can safely conclude that the prevailing doctrine is that, the affirmance
by an equally divided court merely disposes of the present controversy as between the parties and
settles no issue of law; the affirmance leaves unsettled the principle of law presented by the case
and is not entitled to precedential weight or value. In other words, the decision only has res judicata
and not stare decisis effect. It is not conclusive and binding upon other parties as respects the
controversies in other actions.

Let us now examine the patent differences between the petition at bar and the Delfin Petition in
the Santiago case which will prevent the Santiago ruling from binding the present petitioners. To
start with, the parties are different. More importantly, the Delfin Petition did not contain the
signatures of the required number of registered voters under the Constitution: the requirement that
twelve per cent (12%) of all the registered voters in the country wherein each legislative district is
represented by at least three per cent (3%) of all the registered voters therein was not complied with.
For this reason, we ruled unanimously that it was not the initiatory petition which the COMELEC
could properly take cognizance of. In contrast, the present petition appears to be accompanied by
the signatures of the required number of registered voters. Thus, while the Delfin Petition prayed
that an Order be issued fixing the time and dates for signature gathering all over the country, the
Lambino and Aumentado petition, prayed for the calling of a plebiscite to allow the Filipino people to
express their sovereign will on the proposition. COMELEC cannot close its eyes to these material
differences.

Plainly, the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in
denying due course to the Lambino and Aumentado petition on the basis of its mistaken notion
that Santiago established the doctrine that R.A. 6735 was an insufficient law. As aforestressed, that
ruling of six (6) justices who do not represent the majority lacks precedential status and is non-
binding on the present petitioners.

The Court's dismissal of the PIRMA petition is of no moment. Suffice it to say that we dismissed the
PIRMA petition on the principle of res judicata. This was stressed by former Chief Justice Hilario G.
Davide Jr., viz:

The following are my reasons as to why this petition must be summarily dismissed:

First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago
v. COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the
former is substantially identical to the latter, except for the reversal of the roles played by the
principal parties and inclusion of additional, yet not indispensable, parties in the present
petition. But plainly, the same issues and reliefs are raised and prayed for in both cases.
 The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM,
MODERNIZATION, AND ACTION (PIRMA) and spouses ALBERTO PEDROSA and
CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization duly
organized and existing under Philippine laws with office address at Suite 403, Fedman
Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and
CARMEN PEDROSA" as among its "officers." In Santiago, the PEDROSAS were made
respondents as founding members of PIRMA which, as alleged in the body of the petition
therein, "proposes to undertake the signature drive for a people's initiative to amend the
Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding
members of PIRMA.

The decision in Santiago specifically declared that PIRMA was duly represented at the
hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner
therein. Delfin alleged in his petition that he was a founding member of the Movement for
People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement
was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or
PIRMA for brevity." In their Comment to the petition in Santiago, the PEDROSAS did not
deny that they were founding members of PIRMA, and by their arguments, demonstrated
beyond a shadow of a doubt that they had joined Delfin or his cause.

No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as
well as the others joining them, from the operation of the principle of res judicata, which
needs no further elaboration. (emphasis supplied)

Justice Josue N. Bellosillo adds:

The essential requisites of res judicata are: (1) the former judgment must be final; (2) it must
have been rendered by a court having jurisdiction over the subject matter and the parties; (3)
it must be a judgment on the merits; and (4) there must be between the first and second
actions identity of parties, identity of subject matter, and identity of causes of action.127

Applying these principles in the instant case, we hold that all the elements of res judicata are
present. For sure, our Decision in Santiago v. COMELEC, which was promulgated on 19
March 1997, and the motions for reconsideration thereof denied with finality on 10 June
1997, is undoubtedly final. The said Decision was rendered by this Court which had
jurisdiction over the petition for prohibition under Rule 65. Our judgment therein was on the
merits, i.e., rendered only after considering the evidence presented by the parties as well as
their arguments in support of their respective claims and defenses. And, as between
Santiago v. COMELEC case and COMELEC Special Matter No. 97-001 subject of the
present petition, there is identity of parties, subject matter and causes of action.

Petitioners contend that the parties in Santiago v. COMELEC are not identical to the parties
in the instant case as some of the petitioners in the latter case were not parties to the former
case. However, a perusal of the records reveals that the parties in Santiago v. COMELEC
included the COMELEC, Atty. Jesus S. Delfin, spouses Alberto and Carmen Pedrosa, in
their capacities as founding members of PIRMA, as well as Atty. Pete Quirino-Quadra,
another founding member of PIRMA, representing PIRMA, as respondents. In the instant
case, Atty. Delfin was never removed, and the spouses Alberto and Carmen Pedrosa were
joined by several others who were made parties to the petition. In other words, what
petitioners did was to make it appear that the PIRMA Petition was filed by an entirely
separate and distinct group by removing some of the parties involved in Santiago v.
COMELEC and adding new parties. But as we said in Geralde v. Sabido128-
 A party may not evade the application of the rule of res judicata by simply including
additional parties in the subsequent case or by not including as parties in the later
case persons who were parties in the previous suit. The joining of new parties does
not remove the case from the operation of the rule on res judicata if the party against
whom the judgment is offered in evidence was a party in the first action; otherwise,
the parties might renew the litigation by simply joining new parties.

The fact that some persons or entities joined as parties in the PIRMA petition but were not
parties in Santiago v. COMELEC does not affect the operation of the prior judgment against
those parties to the PIRMA Petition who were likewise parties in Santiago v. COMELEC, as
they are bound by such prior judgment.

Needless to state, the dismissal of the PIRMA petition which was based on res judicata binds only
PIRMA but not the petitioners.

VIII

Finally, let the people speak.

"It is a Constitution we are expounding" solemnly intoned the great Chief Justice John
Marshall of the United States in the 1819 case of M'cCulloch v. Maryland.129 Our Constitution is
not a mere collection of slogans. Every syllable of our Constitution is suffused with significance and
requires our full fealty. Indeed, the rule of law will wither if we allow the commands of our
Constitution to underrule us.

The first principle enthroned by blood in our Constitution is the sovereignty of the people. We
ought to be concerned with this first principle, i.e., the inherent right of the sovereign people to
decide whether to amend the Constitution. Stripped of its abstractions, democracy is all about who
has the sovereign right to make decisions for the people and our Constitution clearly and
categorically says it is no other than the people themselves from whom all government authority
emanates. This right of the people to make decisions is the essence of sovereignty, and it
cannot receive any minimalist interpretation from this Court. If there is any principle in the
Constitution that cannot be diluted and is non-negotiable, it is this sovereign right of the people to
decide.

This Court should always be in lockstep with the people in the exercise of their
sovereignty. Let them who will diminish or destroy the sovereign right of the people to decide be
warned. Let not their sovereignty be diminished by those who belittle their brains to comprehend
changes in the Constitution as if the people themselves are not the source and author of our
Constitution. Let not their sovereignty be destroyed by the masters of manipulation who
misrepresent themselves as the spokesmen of the people.

Be it remembered that a petition for people's initiative that complies with the requirement that it "must
be signed by at least 12% of the total number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein" is but the first step in a long
journey towards the amendment of the Constitution. Lest it be missed, the case at bar involves but
a proposal to amend the Constitution. The proposal will still be debated by the people and at this
time, there is yet no fail-safe method of telling what will be the result of the debate. There will still be
a last step to the process of amendment which is the ratification of the proposal by a majority of
the people in a plebiscite called for the purpose. Only when the proposal is approved by a
majority of the people in the plebiscite will it become an amendment to the Constitution. All
the way, we cannot tie the tongues of the people. It is the people who decide for the people
are not an obscure footnote in our Constitution.

The people's voice is sovereign in a democracy. Let us hear them. Let us heed them. Let us
not only sing paens to the people's sovereignty. Yes, it is neither too soon nor too late to let
the people speak.

IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution of the Commission on
Elections dated August 31, 2006, denying due course to the Petition for Initiative filed by Raul L.
Lambino and Erico B. Aumentado in their own behalf and together with some 6.3 million registered
voters who affixed their signatures thereon and to REMAND the petition at bar to the Commission on
Elections for further proceedings.

REYNATO S. PUNO
Associate Justice

____________________

EN BANC

G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED

VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE
PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL
WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE
VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN
T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW
GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO
UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S
PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO
PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P.
ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI
ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.
ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T.
VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY
LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEÑA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and
PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE
ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR
and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its
President, MANUEL VILLAR, JR., Oppositors-Intervenors;

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q.

SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION

QUISUMBING, J.:

1. With due respect to the main opinion written by J. Antonio T. Carpio, and the dissent of J. Reynato
S. Puno, I view the matter before us in this petition as one mainly involving a complex political
question.1 While admittedly the present Constitution lays down certain numerical requirements for
the conduct of a People's Initiative, such as the percentages of signatures – being 12% of the total
number of registered voters, provided each legislative district is represented by at least 3% – they
are not the main points of controversy. Stated in simple terms, what this Court must decide is
whether the Commission on Elections gravely abused its discretion when it denied the petition to
submit the proposed changes to the Constitution directly to the vote of the sovereign people in a
plebiscite. Technical questions, e.g. whether petitioners should have filed a Motion for
Reconsideration before coming to us, are of no moment in the face of the transcendental issue at
hand. What deserve our full attention are the issues concerning the applicable rules as well as
statutory and constitutional limitations on the conduct of the People's Initiative.

2. It must be stressed that no less than the present Constitution itself empowers the people to
"directly" propose amendments through their own "initiative." The subject of the instant petition is by
way of exercising that initiative in order to change our form of government from presidential to
parliamentary. Much has been written about the fulsome powers of the people in a democracy. But
the most basic concerns the idea that sovereignty resides in the people and that all government
authority emanates from them. Clearly, by the power of popular initiative, the people have the
sovereign right to change the present Constitution. Whether the initial moves are done by a
Constitutional Convention, a Constitutional Assembly, or a People's Initiative, in the end every
amendment -- however insubstantial or radical -- must be submitted to a plebiscite. Thus, it is the
ultimate will of the people expressed in the ballot, that matters.2

3. I cannot fault the COMELEC, frankly, for turning down the petition of Messrs. Lambino, et al. For
the COMELEC was just relying on precedents, with the common understanding that, pursuant to the
cases of Santiago v. COMELEC3 and PIRMA v. COMELEC,4 the COMELEC had been permanently
enjoined from entertaining any petition for a people's initiative to amend the Constitution by no less
than this Court. In denying due course below to Messrs. Lambino and Aumentado's petition, I could
not hold the COMELEC liable for grave abuse of discretion when they merely relied on this Court's
unequivocal rulings. Of course, the Santiago and the PIRMA decisions could be reviewed and
reversed by this Court, as J. Reynato S. Puno submits now. But until the Court does so, the
COMELEC was duty bound to respect and obey this Court's mandate, for the rule of law to prevail.

4. Lastly, I see no objection to the remand to the COMELEC of the petition of Messrs. Lambino and
Aumentado and 6.327 million voters, for further examination of the factual requisites before a
plebiscite is conducted. On page 4 of the assailed Resolution of the respondent dated August 31,
2006, the COMELEC tentatively expressed its view that "even if the signatures in the instant Petition
appear to meet the required minimum per centum of the total number of registered voters", the
COMELEC could not give the Petition due course because of our view that R.A. No. 6735 was
inadequate. That, however, is now refuted by Mr. Justice Puno's scholarly ponencia. Now that we
have revisited the Santiago v. COMELEC decision, there is only one clear task for COMELEC. In my
view, the only doable option left for the COMELEC, once factual issues are heard and resolved, is to
give due course to the petition for the initiative to amend our Constitution so that the sovereign
people can vote on whether a parliamentary system of government should replace the present
presidential system.

5. I am therefore in favor of letting the sovereign people speak on their choice of the form of
government as a political question soonest. (This I say without fear of media opinion that our judicial
independence has been tainted or imperiled, for it is not.) Thus I vote for the remand of the petition.
Thereafter, as prayed for, COMELEC should forthwith certify the Petition as sufficient in form and
substance and call for the holding of a plebiscite within the period mandated by the basic law, not
earlier than sixty nor later than ninety days from said certification. Only a credible plebiscite itself,
conducted peacefully and honestly, can bring closure to the instant political controversy.

LEONARDO A. QUISUMBING
Associate Justice

____________________

EN BANC

G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED

VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

G. R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
HE COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR.,
and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents.

x ---------------------------------------------------------------------------------------- x

DISSENTING OPINION

CORONA, J.:

The life of the law is not logic but experience.1 Our collective experience as a nation breathes life to
our system of laws, especially to the Constitution. These cases promise to significantly contribute to
our collective experience as a nation. Fealty to the primary constitutional principle that the
Philippines is not merely a republican State but a democratic one as well behooves this Court to
affirm the right of the people to participate directly in the process of introducing changes to their
fundamental law. These petitions present such an opportunity. Thus, this is an opportune time for
this Court to uphold the sovereign rights of the people.
I agree with the opinion of Mr. Justice Reynato Puno who has sufficiently explained the rationale for
upholding the people's initiative. However, I wish to share my own thoughts on certain matters I
deem material and significant.

Santiago Does Not Apply to This Case But Only to the 1997 Delfin Petition

The COMELEC denied the petition for initiative filed by petitioners purportedly on the basis of this
Court's ruling in Santiago v. COMELEC2 that: (1) RA 6753 was inadequate to cover the system of
initiative regarding amendments to the Constitution and (2) the COMELEC was permanently
enjoined from entertaining or taking cognizance of any petition for initiative regarding amendments to
the Constitution until a sufficient law was validly enacted to provide for the implementation of the
initiative provision.

However, Santiago should not apply to this case but only to the petition of Delfin in 1997. It would be
unreasonable to make it apply to all petitions which were yet unforeseen in 1997. The fact is
that Santiago was focused on the Delfin petition alone.

Those who oppose the exercise of the people's right to initiate changes to the Constitution via
initiative claim that Santiago barred any and all future petitions for initiative by virtue of the doctrines
of stare decisis and res judicata. The argument is flawed.

The ponencia of Mr. Justice Puno has amply discussed the arguments relating to stare decisis.
Hence, I will address the argument from the viewpoint of res judicata.

Res judicata is the rule that a final judgment rendered by a court of competent jurisdiction on the
merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an
absolute bar to a subsequent action involving the same claim, demand or cause of action.3 It has the
following requisites: (1) the former judgment or order must be final; (2) it must have been rendered
by a court having jurisdiction of the subject matter and of the parties; (3) it must be a judgment or
order on the merits and (4) there must be identity of parties, of subject matter, and of cause of action
between the first and second actions.4

There is no identity of parties in Santiago and the instant case. While the COMELEC was also the
respondent in Santiago, the petitioners in that case and those in this case are different. More
significantly, there is no identity of causes of action in the two cases. Santiago involved amendments
to Sections 4 and 7 of Article VI, Section 4 of Article VII and Section 8 of Article X of the Constitution
while the present petition seeks to amend Sections 1to 7 of Article VI and Sections 1 to 4 of the 1987
Constitution. Clearly, therefore, the COMELEC committed grave abuse of discretion when it ruled
that the present petition for initiative was barred by Santiago and, on that ground, dismissed the
petition.

The present petition and that in Santiago are materially different from each other. They are not
based on the same facts. There is thus no cogent reason to frustrate and defeat the present direct
action of the people to exercise their sovereignty by proposing changes to their fundamental law.

People's Initiative Should Not

Be Subjected to Conditions

People's initiative is an option reserved by the people for themselves exclusively. Neither Congress
nor the COMELEC has the power to curtail or defeat this exclusive power of the people to change
the Constitution. Neither should the exercise of this power be made subject to any conditions, as
some would have us accept.
Oppositors to the people's initiative point out that this Court ruled in Santiago that RA 6735 was
inadequate to cover the system of initiative on amendments to the Constitution and, thus, no law
existed to enable the people to directly propose changes to the Constitution. This reasoning is
seriously objectionable.

The pronouncement on the insufficiency of RA 6735 was, to my mind, out of place. It was
unprecedented and dangerously transgressed the domain reserved to the legislature.

While the legislature is authorized to establish procedures for determining the validity and sufficiency
of a petition to amend the constitution,5 that procedure cannot unnecessarily restrict the initiative
privilege.6 In the same vein, this Court cannot unnecessarily and unreasonably restrain the people's
right to directly propose changes to the Constitution by declaring a law inadequate simply for lack of
a sub-heading and other grammatical but insignificant omissions. Otherwise, the constitutional intent
to empower the people will be severely emasculated, if not rendered illusory.

People's Right and Power to Propose Changes to the Constitution Directly Should not be
Unreasonably Curtailed

If Congress and a constitutional convention, both of which are mere representative bodies, can
propose changes to the Constitution, there is no reason why the supreme body politic itself – the
people – may not do so directly.

Resort to initiative to amend the constitution or enact a statute is an exercise of "direct democracy"
as opposed to "representative democracy." The system of initiative allows citizens to directly
propose constitutional amendments for the general electorate to adopt or reject at the polls,
particularly in a plebiscite. While representative government was envisioned to "refine and enlarge
the public views, by passing them through the medium of a chosen body of citizens, whose wisdom
may best discern the true interest of their country, and whose patriotism and love of justice will be
least likely to sacrifice it to temporary or partial considerations,"7 the exercise of "direct democracy"
through initiative reserves direct lawmaking power to the people by providing them a method to
make new laws via the constitution, or alternatively by enacting statutes.8 Efforts of the represented
to control their representatives through initiative have been described as curing the problems of
democracy with more democracy.9

The Constitution celebrates the sovereign right of the people and declares that "sovereignty resides
in the people and all government authority emanates from them."10 Unless the present petition is
granted, this constitutional principle will be nothing but empty rhetoric, devoid of substance for those
whom it seeks to empower.

The right of the people to pass legislation and to introduce changes to the Constitution is a
fundamental right and must be jealously guarded.11 The people should be allowed to directly seek
redress of the problems of society and representative democracy with the constitutional tools they
have reserved for their use alone.

Accordingly, I vote to GRANT the petition in G.R. No. 174513.

RENATO C. CORONA
Associate Justice

____________________
 EN BANC

G. R. No. 174153

RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED

VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD,
RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-
QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS
FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF
FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and
SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR,
MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR,
JR.,Oppositors-Intervenors;

G.R. No. 174299 entitled

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q.

SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION

TINGA, J:

I join in full the opinion of Senior Associate Justice Puno. Its enviable sang-froid, inimitable lucidity,
and luminous scholarship are all so characteristic of the author that it is hardly a waste of pen and
ink to write separately if only to express my deep admiration for his disquisition. It is compelling
because it derives from the fundamental democratic ordinance that sovereignty resides in the
people, and it seeks to effectuate that principle through the actual empowerment of the sovereign
people. Justice Puno's opinion will in the short term engender reactions on its impact on present
attempts to amend the Constitution, but once the political passion of the times have been shorn, it
will endure as an unequivocal message to the taongbayan that they are to be trusted to chart the
course of their future.

Nothing that I inscribe will improve on Justice Puno's opinion. I only write separately to highlight a
few other points which also inform my vote to grant the petitions.

I.

I agree with Justice Puno that Santiago v. COMELEC1 and PIRMA v. COMELEC2 had not acquired
value as precedent and should be reversed in any case. I add that the Court has long been mindful
of the rule that it necessitates a majority, and not merely a plurality, in order that a decision can
stand as precedent. That principle has informed the members of this Court as they deliberated and
voted upon contentious petitions, even if this consideration is not ultimately reflected on the final
draft released for promulgation.

The curious twist to Santiago and PIRMA is that for all the denigration heaped upon Rep. Act No.
6735 in those cases, the Court did not invalidate any provision of the statute. All the Court said then
was that the law was "inadequate". Since this "inadequate" law was not annulled by the Court, or
repealed by Congress, it remained part of the statute books.3

I maintain that even if Rep. Act No. 6735 is truly "inadequate", the Court in Santiago should not have
simply let the insufficiency stand given that it was not minded to invalidate the law itself. Article 9 of
the Civil Code provides that "[n]o judge or court shall decline to render judgment by reason of the
silence, obscurity or insufficiency of the laws."4As explained by the Court recently in Reyes v.
Lim,5 "[Article 9] calls for the application of equity, which[, in the revered Justice Cardozo's words,]
'fills the open spaces in the law.'"6 Certainly, any court that refuses to rule on an action premised on
Rep. Act No. 6735 on the ground that the law is "inadequate" would have been found in grave abuse
of discretion. The previous failure by the Court to "fill the open spaces" in Santiago further highlights
that decision's status as an unfortunate aberration.

I am mindful of the need to respect stare decisis, to the point of having recently decried a majority
ruling that was clearly minded to reverse several precedents but refused to explicitly say so.7 Yet the
principle is not immutable.8The passionate words of Chief Justice Panganiban in Osmeña v.
COMELEC9 bear quoting:

Before I close, a word about stare decisis. In the present case, the Court is maintaining the
ad ban to be consistent with its previous holding in NPC vs. Comelec. Thus, respondent
urges reverence for the stability of judicial doctrines. I submit, however, that more important
than consistency and stability are the verity, integrity and correctness of jurisprudence. As
Dean Roscoe Pound explains, "Law must be stable but it cannot stand still." Verily, it must
correct itself and move in cadence with the march of the electronic age. Error and illogic
should not be perpetuated. After all, the Supreme Court, in many cases, has deviated from
stare decisis and reversed previous doctrines and decisions.10 It should do no less in the
present case.11

Santiago established a tenet that the Supreme Court may affirm a law as constitutional, yet declare
its provisions as inadequate to accomplish the legislative purpose, then barred the enforcement of
the law. That ruling is erroneous, illogical, and should not be perpetuated.

II.
Following Justice Puno's clear demonstration why Santiago should not be respected as precedent, I
agree that the COMELEC's failure to take cognizance of the petitions as mandated by Rep. Act No.
6735 constitutes grave abuse of discretion correctible through the petitions before this Court.

The Court has consistently held in cases such as Abes v. COMELEC12, Sanchez v. COMELEC13,
and Sambarani v. COMELEC14 that "the functions of the COMELEC under the Constitution are
essentially executive and administrative in nature".15 More pertinently, in Buac v. COMELEC16, the
Court held that the jurisdiction of the COMELEC relative to the enforcement and administration of a
law relative to a plebiscite fell under the jurisdiction of the poll body under its constitutional mandate
"to enforce and administer all laws and regulations relative to the conduct of a xxx plebiscite".17

Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The primary task of the COMELEC
under Rep. Act No. 6735 is to enforce and administer the said law, functions that are essentially
executive and administrative in nature. Even the subsequent duty of the COMELEC of determining
the sufficiency of the petitions after they have been filed is administrative in character. By any
measure, the COMELEC's failure to perform its executive and administrative functions under Rep.
Act No. 6735 constitutes grave abuse of discretion.

III.

It has been argued that the subject petitions for initiative are barred under Republic Act No. 6735 as
they allegedly embrace more than one subject. Section 10 of Rep. Act No. 6735 classifies as a
"prohibited measure," a petition submitted to the electorate that embraces more than one
subject.18 On this point, reliance is apparently placed on the array of provisions which are to be
affected by the amendments proposed in the initiative petition.

Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined constitutional principle that the
laws passed by Congress "shall embrace only one subject which shall be expressed in the title
thereof".19 The one-subject requirement under the Constitution is satisfied if all the parts of the
statute are related, and are germane to the subject matter expressed in the title, or as long as they
are not inconsistent with or foreign to the general subject and title.20 An act having a single general
subject, indicated in the title, may contain any number of provisions, no matter how diverse they may
be, so long as they are not inconsistent with or foreign to the general subject, and may be
considered in furtherance of such subject by providing for the method and means of carrying out the
general object.21

The precedents governing the one-subject, one-title rule under the Constitution should apply as well
in the interpretation of Section 10 of Rep. Act No. 6735. For as long as it can be established that an
initiative petition embraces a single general subject, the petition may be allowed no matter the
number of constitutional provisions proposed for amendment if the amendments are germane to the
subject of the petition.

Both the Sigaw ng Bayan and the Lambino initiative petitions expressly propose the changing of the
form of government from bicameral-presidential to unicameral-parliamentary. Such a proposal may
strike as comprehensive, necessitating as it will the reorganization of the executive and legislative
branches of government, nevertheless it ineluctably encompasses only a single general subject still.

The 1987 Constitution (or any constitution for that matter) is susceptible to division into several
general spheres. To cite the broadest of these spheres by way of example, Article III enumerates the
guaranteed rights of the people under the Bill of Rights; Articles VI, VII and VIII provide for the
organizational structure of government; while Articles II, XII, XIII & XIV, XV and XVI enunciate policy
principles of the State. What would clearly be prohibited under Section 10 of Rep. Act No. 6735 is an
initiative petition that seeks to amend provisions which do not belong to the same sphere. For
example, had a single initiative petition sought not only to change the form of government from
presidential to parliamentary but also to amend the Bill of Rights, said petition would arguably have
been barred under Section 10, as that petition ostensibly embraces more than one subject, with
each subject bearing no functional relation to the other. But that is not the case with the present
initiative petitions.

Neither can it be argued that the initiative petitions embrace more than one subject since the
proposed amendments seek to affect two separate branches of government. The very purpose of
the initiative petitions is to fuse the powers of the executive and legislative branches of government;
hence, the amendments intended to effect such general intent necessarily affects the two branches.
If it required that to propose a shift in government from presidential to parliamentary, the
amendments to Article VII (Executive Branch) have to be segregated to a different petition from that
which would propose amendments to Article VI (Legislative Branch), then the result would be two
initiative petitions ─ both subject to separate authentications, consideration and even plebiscites, all
to effect one general proposition. This scenario, which entertains the possibility that one petition
would ultimately fail while the other succeeds, could thus allow for the risk that the executive branch
could be abolished without transferring executive power to the legislative branch. An absurd result,
indeed.

I am not even entirely comfortable with the theoretical underpinnings of Section 10. The Constitution
indubitably grants the people the right to seek amendment of the charter through initiative, and
mandates Congress to "provide for the implementation of the exercise of this right." In doing so,
Congress may not restrict the right to initiative on grounds that are not provided for in the
Constitution. If for example the implementing law also provides that certain provisions of the
Constitution may not be amended through initiative, that prohibition should not be sustained.
Congress is tasked with the implementation, and not the restriction of the right to initiative.

The one-subject requirement under Section 10 is not provided for as a bar to amendment under the
Constitution. Arguments can be supplied for the merit of such a requirement, since it would afford a
measure of orderliness when the vital question of amending the Constitution arises. The one-subject
requirement does allow the voters focus when deliberating whether or not to vote for the
amendments. These factors of desirability nonetheless fail to detract from the fact that the one-
subject requirement imposes an additional restriction on the right to initiative not contemplated by
the Constitution. Short of invalidating the requirement, a better course of action would be to insist
upon its liberal interpretation. After all, the Court has consistently adhered to a liberal interpretation
of the one-subject, one-title rule.22 There is no cause to adopt a stricter interpretative rule with regard
to the one-subject rule under Section 10 of Rep. Act No. 6735.

IV.

During the hearing on the petitions, the argument was raised that provisions of the Constitution
amended through initiative would not have the benefit of a reference source from the record of a
deliberative body such as Congress or a constitutional convention. It was submitted that this
consideration influenced the Constitutional Commission as it drafted Section 2, Article XVII, which
expressly provided that only amendments, and not revisions, may be the subject of initiative
petitions.

This argument clearly proceeds from a premise that accords supreme value to the record of
deliberations of a constitutional convention or commission in the interpretation of the charter. Yet if
the absence of a record of deliberations stands as so serious a flaw as to invalidate or constrict
processes which change a constitution or its provisions, then the entire initiative process authorized
by the Constitution should be scarlet-marked as well.

Even if this position can be given any weight in the consideration of these petitions, I would like to
point out that resort to the records of deliberations is only one of many aids to constitutional
construction. For one, it should be abhorred if the provision under study is itself clear, plain, and free
from ambiguity. As the Court held in Civil Liberties Union v. Executive Secretary:23

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views of the individual members, and
as indicating the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk . . . We think it safer to construe the constitution from what appears
upon its face."24

Even if there is need to refer to extrinsic sources in aid of constitutional interpretation, the
constitutional record does not provide the exclusive or definitive answer on how to interpret the
provision. The intent of a constitutional convention is not controlling by itself, and while the historical
discussion on the floor of the constitutional convention is valuable, it is not necessarily decisive. The
Court has even held in Vera v. Avelino25 that "the proceedings of the [constitutional] convention are
less conclusive of the proper construction of the fundamental law than are legislative proceedings of
the proper construction of a statute, since in the latter case it is the intent of the legislature that
courts seek, while in the former courts are endeavoring to arrive at the intent of the people through
the discussions and deliberations of their representatives."26 The proper interpretation of a
constitution depends more on how it was understood by the people adopting it than the framers'
understanding thereof.27

If there is fear in the absence of a constitutional record as guide for interpretation of any
amendments adopted via initiative, such absence would not preclude the courts from interpreting
such amendments in a manner consistent with how courts generally construe the Constitution. For
example, reliance will be placed on the other provisions of the Constitution to arrive at a harmonized
and holistic constitutional framework. The constitutional record is hardly the Rosetta Stone that
unlocks the meaning of the Constitution.

V.

I fully agree with Justice Puno that all issues relating to the sufficiency of the initiative petitions
should be remanded to the COMELEC. Rep. Act No. 6735 clearly reposes on the COMELEC the
task of determining the sufficiency of the petitions, including the ascertainment of whether twelve
percent (12%) of all registered voters, including three percent (3%) of registered voters in every
legislative district have indeed signed the initiative petitions.28 It should be remembered that the
COMELEC had dismissed the initiative petitions outright, and had yet to undertake the determination
of sufficiency as required by law.

It has been suggested to the end of leading the Court to stifle the initiative petitions that the Court
may at this juncture pronounce the initiative petitions as insufficient. The derivation of the factual
predicates leading to the suggestion is uncertain, considering that the trier of facts, the COMELEC in
this instance, has yet to undertake the necessary determination. Still, the premise has been floated
that petitioners have made sufficient admissions before this Court that purportedly established the
petitions are insufficient.
That premise is highly dubitable. Yet the more fundamental question that we should ask, I submit, is
whether it serves well on the Court to usurp trier of facts even before the latter exercises its
functions? If the Court, at this stage, were to declare the petitions as insufficient, it would be akin to
the Court pronouncing an accused as guilty even before the lower court trial had began.

Matugas v. COMELEC29 inveighs against the propriety of the Court uncharacteristically assuming the
role of trier of facts, and resolving factual questions not previously adjudicated by the lower courts or
tribunals:

[P]etitioner in this case cannot "enervate" the COMELEC's findings by introducing new
evidence before this Court, which in any case is not a trier of facts, and then ask it to
substitute its own judgment and discretion for that of the COMELEC.

The rule in appellate procedure is that a factual question may not be raised for the first time
on appeal, and documents forming no part of the proofs before the appellate court will not be
considered in disposing of the issues of an action. This is true whether the decision elevated
for review originated from a regular court or an administrative agency or quasi-judicial body,
and whether it was rendered in a civil case, a special proceeding, or a criminal case.
Piecemeal presentation of evidence is simply not in accord with orderly justice.30

Any present determination by the Court on the sufficiency of the petitions constitutes in effect a
trial de novo, the Justices of the Supreme Court virtually descending to the level of trial court judges.
This is an unbecoming recourse, and it simply is not done.

VI.

The worst position this Court could find itself in is to acquiesce to a plea that it make the choice
whether to amend the Constitution or not. This is a matter which should not be left to fifteen
magistrates who have not been elected by the people to make the choice for them.

A vote to grant the petitions is not a vote to amend the 1987 Constitution. It is merely a vote to allow
the people to directly exercise that option. In fact, the position of Justice Puno which I share would
not even guarantee that the Lambino and Sigaw ng Bayan initiative petitions would be submitted to
the people in a referendum. The COMELEC will still have to determine the sufficiency of the petition.
Among the questions which still have to be determined by the poll body in considering the sufficiency
of the petitions is whether twelve percent (12%) of all registered voters nationwide, including three
percent (3%) of registered voters in every legislative district, have indeed signed the initiative
petitions.31

And even should the COMELEC find the initiative petitions sufficient, the matter of whether the
Constitution should be amended would still depend on the choice of the electorate. The oppositors
are clearly queasy about some of the amendments proposed, or the imputed motives behind the
amendments. A referendum, should the COMELEC find the petitions as sufficient, would allow them
to convey their uneasiness to the public at large, as well as for the proponents of the amendment to
defend their proposal. The campaign period alone would allow the public to be involved in the
significant deliberation on the course our nation should take, with the ensuing net benefit of a more
informed, more politically aware populace. And of course, the choice on whether the Constitution
should be amended would lie directly with the people. The initiative process involves participatory
democracy at its most elemental; wherein the consequential debate would not be confined to the
august halls of Congress or the hallowed chambers of this Court, as it would spill over to the public
squares and town halls, the academic yards and the Internet blogosphere, the dining areas in the
homes of the affluent and the impoverished alike.
The prospect of informed and widespread discussion on constitutional change engaged in by a
people who are actually empowered in having a say whether these changes should be enacted,
gives fruition to the original vision of pure democracy, as formulated in Athens two and a half
millennia ago. The great hero of Athenian democracy, Pericles, was recorded as saying in his famed
Funeral Oration, "We differ from other states in regarding the man who keeps aloof from public life
not as 'private' but as useless; we decide or debate, carefully and in person all matters of
policy, and we hold, not that words and deeds go ill together, but that acts are foredoomed to
failure when undertaken undiscussed."32

Unfortunately, given the highly politicized charge of the times, it has been peddled that an act or vote
that assists the initiative process is one for the willful extinction of democracy or democratic
institutions. Such a consideration should of course properly play its course in the public debates and
deliberations attendant to the initiative process. Yet as a result of the harum-scarum, the temptation
lies heavy for a member of this Court perturbed with the prospect of constitutional change to relieve
those anxieties by simply voting to enjoin any legal procedure that initiates the amendment or
revision of the fundamental law, even at the expense of the people's will or what the Constitution
allows. A vote so oriented takes the conservative path of least resistance, even as it may gain the
admiration of those who do not want to see the Constitution amended.

Still, the biases we should enforce as magistrates are those of the Constitution and the elements of
democracy on which our rule of law is founded. Direct democracy, as embodied in the initiative
process, is but a culmination of the evolution over the centuries of democratic rights of choice and
self-governance. The reemergence of the Athenian democratic ideal after centuries of tyrannical
rules arrived very slowly, the benefits parceled out at first only to favored classes. The Magna Carta
granted limited rights to self-determination and self-governance only to a few English nobles; the
American Constitution was originally intended to give a meaningful voice only to free men, mostly
Caucasian, who met the property-holding requirements set by the states for voting. Yet even the
very idea of popular voting, limited as it may have already been within the first few years of the
American Union, met resistance from no less a revered figure as Alexander Hamilton, to whom the
progressive historian Howard Zinn attributes these disconcerting words:

The voice of the people has been said to be the voice of God; and however generally this
maxim has been quoted and believed, it is not true in fact. The people are turbulent and
changing; they seldom judge or determine right. Give therefore to the first class a distinct
permanent share in the government… Can a democratic assembly who annually revolve in
the mass of the people be supposed steadily to pursue the public good? Nothing but a
permanent body can check the imprudence of democracy…33

This utterly paternalistic and bigoted view has not survived into the present age of modern
democracy where a person's poverty, color, or gender no longer impedes the exercise of full
democratic rights. Yet a democracy that merely guarantees its citizens the right to live their lives
freely is incomplete if there is no corresponding allowance for a means by which the people have a
direct choice in determining their country's direction. Initiative as a mode of amending a constitution
may seem incompatible with representative democracy, yet it embodies an even purer form of
democracy. Initiative, which our 1987 Constitution saw fit to grant to the people, is a progressive
measure that is but a continuation of the line of evolution of the democratic ideal.

By allowing the sovereign people to directly propose and enact constitutional amendments, the
initiative process should be acknowledged as the purest implement of democratic rule under law.
This right granted to over sixty million Filipinos cannot be denied by the votes of less than eight
magistrates for reasons that bear no cogitation on the Constitution.
I VOTE to GRANT the petitions.

DANTE O. TINGA
Associate Justice

____________________

EN BANC

G. R. No. 174153

RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED

VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD,
RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-
QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS
FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF
FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and
SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR,
MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR,
JR.,Oppositors-Intervenors;

G.R. No. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q.

SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.

x ---------------------------------------------------------------------------------------- x

DISSENTING OPINION

CHICO-NAZARIO, J.:
 "The people made the constitution, and the people can unmake it. It is the creature of their will, and
lives only by their will. But this supreme and irresistible power to make or unmake, resides only in
the whole body of the people; not in any subdivision of them."

-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L ed. 257, 287.

I express my concurrence in the discussions and conclusions presented in the persuasive and
erudite dissent of Justice Reynato S. Puno. However, I make some additional observations in
connection with my concurrence.

While it is but proper to accord great respect and reverence to the Philippine Constitution of 1987 for
being the supreme law of the land, we should not lose sight of the truth that there is an ultimate
authority to which the Constitution is also subordinate – the will of the people. No less than its very
first paragraph, the Preamble,1expressly recognizes that the Constitution came to be because it was
ordained and promulgated by the sovereign Filipino people. It is a principle reiterated yet again in
Article II, Section 1, of the Constitution, which explicitly declares that "[t]he Philippines is a
democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them." Thus, the resolution of the issues and controversies raised by the instant
Petition should be guided accordingly by the foregoing principle.

If the Constitution is the expression of the will of the sovereign people, then, in the event that the
people change their will, so must the Constitution be revised or amended to reflect such change.
Resultantly, the right to revise or amend the Constitution inherently resides in the sovereign people
whose will it is supposed to express and embody. The Constitution itself, under Article XVII, provides
for the means by which the revision or amendment of the Constitution may be proposed and ratified.

Under Section 1 of the said Article, proposals to amend or revise the Constitution may be made (a)
by Congress, upon a vote of three-fourths of all its Members, or (b) by constitutional convention. The
Congress and the constitutional convention possess the power to propose amendments to, or
revisions of, the Constitution not simply because the Constitution so provides, but because the
sovereign people had chosen to delegate their inherent right to make such proposals to their
representatives either through Congress or through a constitutional convention.

On the other hand, the sovereign people, well-inspired and greatly empowered by the People Power
Revolution of 1986, reserved to themselves the right to directly propose amendments to the
Constitution through initiative, to wit –

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once
every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.2

The afore-quoted section does not confer on the Filipino people the right to amend the Constitution
because, as previously discussed, such right is inherent in them. The section only reduces into
writing this right to initiate amendments to the Constitution where they collectively and willfully
agreed in the manner by which they shall exercise this right: (a) through the filing of a petition; (b)
supported by at least twelve percent (12%) of the total number of registered voters nationwide; (c)
with each legislative district represented by at least three percent (3%) of the registered voters
therein; (d) subject to the limitation that no such petition may be filed within five years after the
ratification of the Constitution, and not oftener than once every five years thereafter; and (e) a
delegation to Congress of the authority to provide the formal requirements and other details for the
implementation of the right.

It is my earnest opinion that the right of the sovereign people to directly propose amendments to the
Constitution through initiative is more superior than the power they delegated to Congress or to a
constitutional convention to amend or revise the Constitution. The initiative process gives the
sovereign people the voice to express their collective will, and when the people speak, we must be
ready to listen. Article XVII, Section 2 of the Constitution recognizes and guarantees the sovereign
people's right to initiative, rather than limits it. The enabling law which Congress has been tasked to
enact must give life to the said provision and make the exercise of the right to initiative possible, not
regulate, limit, or restrict it in any way that would render the people's option of resorting to initiative to
amend the Constitution more stringent, difficult, and less feasible, as compared to the other
constitutional means to amend or revise the Constitution. In fact, it is worth recalling that under
Article VI, Section 1 of the Constitution, the legislative power of Congress is limited to the
extent reserved to the people by the provisions on initiative and referendum.

It is with this frame of mind that I review the issues raised in the instant Petitions, and which has led
me to the conclusions, in support of the dissent of Justice Puno, that (a) The Commission on
Election (COMELEC) had indeed committed grave abuse of discretion in summarily dismissing the
petition for initiative to amend the Constitution filed by herein petitioners Raul L. Lambino and Erico
B. Aumentado; (b) The Court should revisit the pronouncements it made in Santiago v. Commission
on Elections;3 (c) It is the sovereign people's inherent right to propose changes to the Constitution,
regardless of whether they constitute merely amendments or a total revision thereof; and (d) The
COMELEC should take cognizance of Lambino and Aumentado's petition for initiative and, in the
exercise of its jurisdiction, determine the factual issues raised by the oppositors before this Court.

The COMELEC had indeed committed grave abuse of discretion when it summarily dismissed
Lambino and Aumentado's petition for initiative entirely on the basis of the Santiago case which,
allegedly, permanently enjoined it from entertaining or taking cognizance of any petition for initiative
to amend the Constitution in the absence of a sufficient law.

After a careful reading, however, of the Santiago case, I believe in earnest that the permanent
injunction actually issued by this Court against the COMELEC pertains only to the petition for
initiative filed by Jesus S. Delfin, and not to all subsequent petitions for initiative to amend the
Constitution.

The Conclusion4 in the majority opinion in the Santiago case reads –

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution
should no longer be kept in the cold; it should be given flesh and blood, energy and strength.
 Congress should not tarry any longer in complying with the constitutional mandate to provide
for the implementation of the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments
to the Constitution, and to have failed to provide sufficient standard for subordinate
legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to the
Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition

(UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as

against the Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

It is clear from the fallo, as it is reproduced above, that the Court made permanent the Temporary
Restraining Order (TRO) it issued on 18 December 1996 against the COMELEC. The said TRO
enjoined the COMELEC from proceeding with the Delfin Petition, and Alberto and Carmen Pedrosa
from conducting a signature drive for people's initiative.5 It was this restraining order, more
particularly the portion thereof referring to the Delfin Petition, which was expressly made permanent
by the Court. It would seem to me that the COMELEC and all other oppositors to Lambino and
Aumentado's petition for initiative gave unwarranted significance and weight to the first paragraph of
the Conclusion in the Santiago case. The first and second paragraphs of the Conclusion,
preceding the dispositive portion, merely express the opinion of the ponente; while the
definite orders of the Court for implementation are found in the dispositive portion.

We have previously held that –

The dispositive portion or the fallo is what actually constitutes the resolution of the court and
which is the subject of execution, although the other parts of the decision may be resorted to
in order to determine the ratio decidendi for such a resolution. Where there is conflict
between the dispositive part and the opinion of the court contained in the text of the decision,
the former must prevail over the latter on the theory that the dispositive portion is the final
order while the opinion is merely a statement ordering nothing. Hence execution must
conform more particularly to that ordained or decreed in the dispositive portion of the
decision.6

Is there a conflict between the first paragraph of the Conclusion and the dispositive portion of
the Santiago case? Apparently, there is. The first paragraph of the Conclusion states that the
COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition
for initiative on amendments to the Constitution until the enactment of a valid law. On the other hand,
the fallo only makes permanent the TRO7 against COMELEC enjoining it from proceeding with
the Delfin Petition. While the permanent injunction contemplated in the Conclusion encompasses
all petitions for initiative on amendments to the Constitution, the fallo is expressly limited to the Delfin
Petition. To resolve the conflict, the final order of the Court as it is stated in the dispositive portion or
the fallo should be controlling.

Neither can the COMELEC dismiss Lambino and Aumentado's petition for initiative on the basis of
this Court's Resolution, dated 23 September 1997, in the case of People's Initiative for Reform,
Modernization and Action (PIRMA) v. The Commission on Elections, et al.8 The Court therein found
that the COMELEC did not commit grave abuse of discretion in dismissing the PIRMA Petition for
initiative to amend the Constitution for it only complied with the Decision in the Santiago case.

It is only proper that the Santiago case should also bar the PIRMA Petition on the basis of res
judicata because PIRMA participated in the proceedings of the said case, and had knowledge of
and, thus, must be bound by the judgment of the Court therein. As explained by former Chief Justice
Hilario G. Davide, Jr. in his separate opinion to the Resolution in the PIRMA case –

First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v.
COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the
former is substantially identical to the latter, except for the reversal of the roles played by the
principal parties and inclusion of additional, yet not indispensable, parties in the present
petition. But plainly, the same issues and reliefs are raised and prayed for in both cases.

The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM,

MODERNIZATION, AND ACTION (PIRMA) and Spouses ALBERTO PEDROSA and
CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization duly
organized and existing under Philippine laws with office address at Suite 403, Fedman
Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and
CARMEN PEDROSA" as among its "officers." In Santiago, the PEDROSAS were made
respondents as founding members of PIRMA which, as alleged in the body of the petition
therein, "proposes to undertake the signature drive for a people's initiative to amend the
Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding
members of PIRMA.

The decision in Santiago specifically declared that PIRMA was duly represented at the
hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner
therein. Delfin alleged in his petition that he was a founding member of the Movement for
People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement
was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or
PIRMA for brevity." In their Comment to the petition in Santiago, the PEDROSA'S did not
deny that they were founding members of PIRMA, and by their arguments, demonstrated
beyond a shadow of a doubt that they had joined Delfin or his cause.

No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as
well as the others joining them, from the operation of the principle of res judicata, which
needs no further elaboration.9

While the Santiago case bars the PIRMA case because of res judicata, the same cannot be said to
the Petition at bar. Res judicata is an absolute bar to a subsequent action for the same cause; and
its requisites are: (a) the former judgment or order must be final; (b) the judgment or order must be
one on the merits; (c) it must have been rendered by a court having jurisdiction over the subject
matter and parties; and (d) there must be between the first and second actions, identity of parties, of
subject matter and of causes of action.10
Even though it is conceded that the first three requisites are present herein, the last has not been
complied with. Undoubtedly, the Santiago case and the present Petition involve different parties,
subject matter, and causes of action, and the former should not bar the latter.

In the Santiago case, the petition for initiative to amend the Constitution was filed by Delfin alone.
His petition does not qualify as the initiatory pleading over which the COMELEC can acquire
jurisdiction, being unsupported by the required number of registered voters, and actually imposing
upon the COMELEC the task of gathering the voters' signatures. In the case before us, the petition
for initiative to amend the Constitution was filed by Lambino and Aumentado, on behalf of the 6.3
million registered voters who affixed their signatures on the signature sheets attached thereto. Their
petition prays that the COMELEC issue an Order –

1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987
Constitution;

2. Directing the publication of the petition in Filipino and English at least twice in newspapers
of general and local circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the
Certification by the COMELEC of the sufficiency of the petition, to allow the Filipino people to
express their sovereign will on the proposition.

Although both cases involve the right of the people to initiate amendments to the Constitution, the
personalities concerned and the other factual circumstances attendant in the two cases differ. Also
dissimilar are the particular prayer and reliefs sought by the parties from the COMELEC, as well as
from this Court. For these reasons, I find that the COMELEC acted with grave abuse of discretion
when it summarily dismissed the petition for initiative filed by Lambino and Aumentado. It behooves
the COMELEC to accord due course to a petition which on its face complies with the rudiments of
the law. COMELEC was openly negligent in summarily dismissing the Lambino and Aumentado
petition. The haste by which the instant Petition was struck down is characteristic of bad faith, which,
to my mind, is a patent and gross evasion of COMELEC's positive duty. It has so obviously copped
out of its duty and responsibility to determine the sufficiency thereof and sought protection and
justification for its craven decision in the supposed permanent injunction issued against it by the
Court in the Santiago case. The COMELEC had seemingly expanded the scope and application of
the said permanent injunction, reading into it more than what it actually states, which is surprising,
considering that the Chairman and majority of the members of COMELEC are lawyers who should
be able to understand and appreciate, more than a lay person, the legal consequences and
intricacies of the pronouncements made by the Court in the Santiago case and the permanent
injunction issued therein.

No less than the Constitution itself, under the second paragraph of Article XVII, Section 4, imposes
upon the COMELEC the mandate to set a date for plebiscite after a positive determination of the
sufficiency of a petition for initiative on amendments to the Constitution, viz –

SEC. 4. x x x

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the sufficiency of the petition.

As a rule, the word "shall" commonly denotes an imperative obligation and is inconsistent with the
idea of discretion, and that the presumption is that the word "shall" when used, is
mandatory.11 Under the above-quoted constitutional provision, it is the mandatory or imperative
obligation of the COMELEC to (a) determine the sufficiency of the petition for initiative on
amendments to the Constitution and issue a certification on its findings; and (b) in case such petition
is found to be sufficient, to set the date for the plebiscite on the proposed amendments not earlier
than 60 days nor later than 90 days after its certification. The COMELEC should not be allowed to
shun its constitutional mandate under the second paragraph of Article XVII, Section 4, through the
summary dismissal of the petition for initiative filed by Lambino and Aumentado, when such petition
is supported by 6.3 million signatures of registered voters. Should all of these signatures be
authentic and representative of the required percentages of registered voters for every legislative
district and the whole nation, then the initiative is a true and legitimate expression of the will of the
people to amend the Constitution, and COMELEC had caused them grave injustice by silencing their
voice based on a patently inapplicable permanent injunction.

II

We should likewise take the opportunity to revisit the pronouncements made by the Court in its
Decision in the Santiago case, especially as regards the supposed insufficiency or inadequacy of
Republic Act No. 6735 as the enabling law for the implementation of the people's right to initiative on
amendments to the Constitution.

The declaration of the Court that Republic Act No. 6735 is insufficient or inadequate actually gave
rise to more questions rather than answers, due to the fact that there has never been a judicial
precedent wherein the Court invalidated a law for insufficiency or inadequacy. The confusion over
such a declaration thereby impelled former Chief Justice Davide, Jr., the ponente in
the Santiago case, to provide the following clarification in his separate opinion to the Resolution in
the PIRMA case, thus –

Simply put, Santiago did, in reality, declare as unconstitutional that portion of R.A. No. 6735
relating to Constitutional initiatives for failure to comply with the "completeness and sufficient
standard tests" with respect to permissible delegation of legislative power or subordinate
legislation. However petitioners attempt to twist the language in Santiago, the conclusion is
inevitable; the portion of R.A. No. 6735 was held to be unconstitutional.

It is important to note, however, that while the Decision in the Santiago case pronounced repeatedly
that Republic Act No. 6735 was insufficient and inadequate, there is no categorical declaration
therein that the said statute was unconstitutional. The express finding that Republic Act No. 6735 is
unconstitutional can only be found in the separate opinion of former Chief Justice Davide to the
Resolution in the PIRMA case, which was not concurred in by the other members of the Court.

Even assuming arguendo that the declaration in the Santiago case, that Republic Act No. 6735 is
insufficient and inadequate, is already tantamount to a declaration that the statute is unconstitutional,
it was rendered in violation of established rules in statutory construction, which state that –

[A]ll presumptions are indulged in favor of constitutionality; one who attacks a statute,
alleging unconstitutionality must prove its invalidity beyond a reasonable doubt (Victoriano v.
Elizalde Rope Workers' Union, 59 SCRA 54 [19741). In fact, this Court does not decide
questions of a constitutional nature 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 lis mota presented (Tropical Homes v. National Housing Authority,
152 SCRA 540 [1987]).
First, the Court, in the Santiago case, could have very well avoided the issue of constitutionality of
Republic Act No. 6735 by ordering the COMELEC to dismiss the Delfin petition for the simple reason
that it does not constitute an initiatory pleading over which the COMELEC could acquire jurisdiction.
And second, the unconstitutionality of Republic Act No. 6735 has not been adequately shown. It was
by and large merely inferred or deduced from the way Republic Act No. 6735 was worded and the
provisions thereof arranged and organized by Congress. The dissenting opinions rendered by
several Justices in the Santiago case reveal the other side to the argument, adopting the more
liberal interpretation that would allow the Court to sustain the constitutionality of Republic Act No.
6735. It would seem that the majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the constitutionality of the statute.

The Court, acting en banc on the Petition at bar, can revisit its Decision in the Santiago case and
again open to judicial review the constitutionality of Republic Act No. 6735; in which case, I shall cast
my vote in favor of its constitutionality, having satisfied the completeness and sufficiency of
standards tests for the valid delegation of legislative power. I fully agree in the conclusion made by
Justice Puno on this matter in his dissenting opinion12 in the Santiago case, that reads –

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in
promulgating the law's implementing rules and regulations of the law. As aforestated,
Section 2 spells out the policy of the law; viz: "The power of the people under a system of
initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated
power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law
states the number of signatures necessary to start a people's initiative, directs how initiative
proceeding is commenced, what the COMELEC should do upon filing of the petition for
initiative, how a proposition is approved, when a plebiscite may be held, when the
amendment takes effect, and what matters may not be the subject of any initiative. By any
measure, these standards are adequate.

III

The dissent of Justice Puno has already a well-presented discourse on the difference between an
"amendment" and a "revision" of the Constitution. Allow me also to articulate my additional thoughts
on the matter.

Oppositors to Lambino and Aumentado's petition for initiative argue that the proposed changes
therein to the provisions of the Constitution already amount to a revision thereof, which is not
allowed to be done through people's initiative; Article XVII, Section 2 of the Constitution on people's
initiative refers only to proposals for amendments to the Constitution. They assert the traditional
distinction between an amendment and a revision, with amendment referring to isolated or
piecemeal change only, while revision as a revamp or rewriting of the whole instrument.13

However, as pointed out by Justice Puno in his dissent, there is no quantitative or qualitative test
that can establish with definiteness the distinction between an amendment and a revision, or
between a substantial and simple change of the Constitution.

The changes proposed to the Constitution by Lambino and Aumentado's petition for initiative
basically affect only Article VI on the Legislative Department and Article VII on the Executive
Department. While the proposed changes will drastically alter the constitution of our government by
vesting both legislative and executive powers in a unicameral Parliament, with the President as the
Head of State and the Prime Minister exercising the executive power; they would not essentially
affect the other 16 Articles of the Constitution. The 100 or so changes counted by the oppositors to
the other provisions of the Constitution are constituted mostly of the nominal substitution of one word
for the other, such as Parliament for Congress, or Prime Minister for President. As eloquently
pointed out in the dissent of Justice Puno, the changes proposed to transform our form of
government from bicameral-presidential to unicameral-parliamentary, would not affect the
fundamental nature of our state as a democratic and republican state. It will still be a representative
government where officials continue to be accountable to the people and the people maintain control
over the government through the election of members of the Parliament.

Furthermore, should the people themselves wish to change a substantial portion or even the whole
of the Constitution, what or who is to stop them? Article XVII, Section 2 of the Constitution which, by
the way it is worded, refers only to their right to initiative on amendments of the Constitution? The
delegates to the Constitutional Convention who, according to their deliberations, purposely limited
Article XVII, Section 2 of the Constitution to amendments? This Court which has the jurisdiction to
interpret the provision? Bearing in mind my earlier declaration that the will of the sovereign people is
supreme, there is nothing or no one that can preclude them from initiating changes to the
Constitution if they choose to do so. To reiterate, the Constitution is supposed to be the expression
and embodiment of the people's will, and should the people's will clamor for a revision of the
Constitution, it is their will which should prevail. Even the fact that the people ratified the 1987
Constitution, including Article XVII, Section 2 thereof, as it is worded, should not prevent the exercise
by the sovereign people of their inherent right to change the Constitution, even if such change would
be tantamount to a substantial amendment or revision thereof, for their actual exercise of the said
right should be a clear renunciation of the limitation which the said provision imposes upon it. It is the
inherent right of the people as sovereign to change the Constitution, regardless of the extent thereof.

IV

Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and take cognizance
of Lambino and Aumentado's petition for initiative to amend the Constitution. I reiterate that it would
be a greater evil if one such petition which is ostensibly supported by the required number of
registered voters all over the country, be summarily dismissed.

Giving due course and taking cognizance of the petition would not necessarily mean that the same
would be found sufficient and set for plebiscite. The COMELEC still faces the task of reviewing the
petition to determine whether it complies with the requirements for a valid exercise of the right to
initiative. Questions raised by the oppositors to the petition, such as those on the authenticity of the
registered voters' signatures or compliance with the requisite number of registered voters for every
legislative district, are already factual in nature and require the reception and evaluation of evidence
of the parties. Such questions are best presented and resolved before the COMELEC since this
Court is not a trier of facts.

In view of the foregoing, I am of the position that the Resolution of the COMELEC dated 31 August
2006 denying due course to the Petition for Initiative filed by Lambino and Aumentado be reversed
and set aside for having been issued in grave abuse of discretion, amounting to lack of jurisdiction,
and that the Petition be remanded to the COMELEC for further proceedings.

In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado.

MINITA V. CHICO-NAZARIO
Associate Justice
____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED

VOTERS, petitioners, vs. The COMMISSION ON ELECTIONS, respondent.

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, petitioners
vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, JR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents.

x ---------------------------------------------------------------------------------------- x

SEPARATE OPINION

VELASCO, JR., J.:

Introduction

The fate of every democracy, of every government based on the Sovereignty

of the people, depends on the choices it makes between these opposite
principles: absolute power on the one hand, and on the other the restraints of
legality and the authority of tradition.
—John Acton

In this thorny matter of the people's initiative, I concur with the erudite and highly persuasive opinion
of Justice Reynato S. Puno upholding the people's initiative and raise some points of my own.

The issue of the people's power to propose amendments to the Constitution was once discussed in
the landmark case of Santiago v. COMELEC.1 Almost a decade later, the issue is once again before
the Court, and I firmly believe it is time to reevaluate the pronouncements made in that case.

The issue of Charter Change is one that has sharply divided the nation, and its proponents and
opponents will understandably take all measures to advance their position and defeat that of their
opponents. The wisdom or folly of Charter Change does not concern the Court. The only thing that
the Court must review is the validity of the present step taken by the proponents of Charter Change,
which is the People's Initiative, as set down in Article XVII, Sec. 2 of the 1987 Constitution:

Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of
the registered voters therein. No amendment under this section shall be authorized within
five years following the ratification of this Constitution nor oftener than once every five years
thereafter.

The Congress shall provide for the implementation of the exercise of this right.
In the Santiago case, the Court discussed whether the second paragraph of that section had been
fulfilled. It determined that Congress had not provided for the implementation of the exercise of the
people's initiative, when it held that Republic Act No. 6735, or "The Initiative and Referendum Act,"
was "inadequate to cover the system of initiative on amendments to the Constitution, and to have
failed to provide sufficient standard for subordinate legislation."2

With all due respect to those Justices who made that declaration, I must disagree.

Republic Act No. 6735 is the proper law for proposing constitutional amendments and it
should not have been considered inadequate.

The decision in Santiago focused on what it perceived to be fatal flaws in the drafting of the law, in
the failings of the way the law was structured, to come to the conclusion that the law was
inadequate. The Court itself recognized the legislators' intent, but disregarded this intent. The law
was found wanting. The Court then saw the inclusion of the Constitution in RA 6735 as an
afterthought. However, it was included, and it should not be excluded by the Court via a strained
analysis of the law. The difficult construction of the law should not serve to frustrate the intent of the
framers of the 1987 Constitution: to give the people the power to propose amendments as they saw
fit. It is a basic precept in statutory construction that the intent of the legislature is the controlling
factor in the interpretation of a statute.3 The intent of the legislature was clear, and yet RA 6735 was
declared inadequate. It was not specifically struck down or declared unconstitutional, merely
incomplete. The Court focused on what RA 6735 was not, and lost sight of what RA 6735 was.

It is my view that the reading of RA 6735 in Santiago should have been more flexible. It is also a
basic precept of statutory construction that statutes should be construed not so much according to
the letter that killeth but in line with the purpose for which they have been enacted.4 The reading of
the law should not have been with the view of its defeat, but with the goal of upholding it, especially
with its avowed noble purpose.

Congress has done its part in empowering the people themselves to propose amendments to the
Constitution, in accordance with the Constitution itself. It should not be the Supreme Court that
stifles the people, and lets their cries for change go unheard, especially when the Constitution itself
grants them that power.

The court's ruling in the Santiago case does not bar the present petition because the fallo in
the Santiago case is limited to the Delfin petition.

The Santiago case involved a petition for prohibition filed by Miriam Defensor-Santiago, et al.,
against the COMELEC, et al., which sought to prevent the COMELEC from entertaining the "Petition
to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" filed by Atty.
Jesus Delfin. In the body of the judgment, the Court made the following conclusion, viz:

This petition must then be granted and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition or initiative on amendments on the
Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system (emphasis supplied).

We feel, however, that the system of initiative to propose amendments to the Constitution
should no longer be kept in the cold; it should be given flesh and blood, energy and strength.
Congress should not tarry any longer in complying with the constitutional mandate to provide
for the implementation of the right of the people under that system.
In the said case, the Court's fallo states as follows:

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R. A. 6735 inadequate to cover the system of initiative on amendments to

the Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to the
Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition

(UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as

against the Commission on Elections, but is LIFTED against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

The question now is if the ruling in Santiago is decisive in this case. It is elementary that when there
is conflict between the dispositive portion or fallo of the decision and the opinion of the court
contained in the text or body of the judgment, the former prevails over the latter. An order of
execution is based on the disposition, not on the body, of the decision.5 The dispositive portion is its
decisive resolution; thus, it is the subject of execution. The other parts of the decision may be
resorted to in order to determine the ratio decidendi for the disposition. Where there is conflict
between the dispositive part and the opinion of the court contained in the text or body of the
decision, the former must prevail over the latter on the theory that the dispositive portion is
the final order, while the opinion is merely a statement ordering nothing. Hence, the execution
must conform with that which is ordained or decreed in the dispositive portion of the decision.6

A judgment must be distinguished from an opinion. The latter is an informal expression of the views
of the court and cannot prevail against its final order or decision. While the two may be combined in
one instrument, the opinion forms no part of the judgment. So there is a distinction between the
findings and conclusions of a court and its Judgment. While they may constitute its decision and
amount to the rendition of a judgment, they are not the judgment itself. It is not infrequent that the
grounds of a decision fail to reflect the exact views of the court, especially those of concurring
justices in a collegiate court. We often encounter in judicial decisions lapses, findings, loose
statements and generalities which do not bear on the issues or are apparently opposed to the
otherwise sound and considered result reached by the court as expressed in the dispositive part, so
called, of the decision.7

Applying the foregoing argument to the Santiago case, it immediately becomes apparent that the
disposition in the latter case categorically made permanent the December 18, 1996 Temporary
Restraining Order issued against the COMELEC in the Delfin petition but did NOT formally
incorporate therein any directive PERMANENTLY enjoining the COMELEC "from entertaining or
taking cognizance of any petition for initiative on amendments." Undeniably, the perpetual
proscription against the COMELEC from assuming jurisdiction over any other petition on Charter
Change through a People's Initiative is just a conclusion and cannot bind the poll body, for such
unending ban would trench on its constitutional power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall under
Section 2, Article IX of the Constitution. RA 6735 gave the COMELEC the jurisdiction to determine
the sufficiency of the petition on the initiative under Section 8, Rule 11 and the form of the petition
under Section 3, Rule I; hence, it cannot be barred from entertaining any such petition.

In sum, the COMELEC still retains its jurisdiction to take cognizance of any petition on initiative
under RA 6735 and it can rule on the petition and its action can only be passed upon by the Court
when the same is elevated through a petition for certiorari. COMELEC cannot be barred from acting
on said petitions since jurisdiction is conferred by law (RA 6735) and said law has not been declared
unconstitutional and hence still valid though considered inadequate in the Santiago case.

Respondents, however, claim that the Court in the subsequent case of PIRMA v. Commission on
Elections8confirmed the statement of the Court in the Santiago case that the COMELEC was
"permanently enjoined from entertaining or taking cognizance of any petition for initiative on
amendments." Much reliance is placed on the ruling contained in a Minute Resolution which reads:

The Court ruled, first, by a unanimous vote, that no grave abuse of Discretion could be
attributed to the public respondent COMELEC in Dismissing the petition filed by PIRMA
therein, it appearing that it only Complied with the DISPOSITIONS in the Decision of this
Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10,
1997.

Take note that the Court specifically referred to "dispositions" in the March 19, 1997 Decision. To
reiterate, the dispositions in the Santiago case decision refer specifically to the December 18, 1996
TRO being made permanent against the COMELEC but do not pertain to a permanent injunction
against any other petition for initiative on amendment. Thus, what was confirmed or even affirmed in
the Minute Resolution in the PIRMA case pertains solely to the December 18, 1996 TRO which
became permanent, the declaration of the inadequacy of RA 6735, and the annulment of certain
parts of Resolution No. 2300 but certainly not the alleged perpetual injunction against the initiative
petition. Thus, the resolution in the PIRMA case cannot be considered res judicata to the Lambino
petition.

Amendment or Revision

One last matter to be considered is whether the petition may be allowed under RA 6735, since only
amendments to the Constitution may be the subject of a people's initiative.

The Lambino petition cannot be considered an act of revising the Constitution; it is merely an
attempt to amend it. The term amendment has to be liberally construed so as to effectuate the
people's efforts to amend the Constitution.

As an eminent constitutionalist, Dean Vicente G. Sinco,9 explained:

Strictly speaking, the act of revising a constitution involves alterations of different portions of
the entire document. It may result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important provisions. But whatever results
the revision may produce, the factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to determine which one should be
 altered or suppressed or whether the whole document should be replaced with an entirely
new one.

The act of amending a constitution, on the other hand, envisages a change of only a few
specific provisions. The intention of an act to amend is not to consider the advisability of
changing the entire constitution or of considering that possibility. The intention rather is to
improve specific parts of the existing constitution or to add to it provisions deemed essential
on account of changed conditions or to suppress portions of it that seem obsolete, or
dangerous, or misleading in their effect.

In this case, the Lambino petition is not concerned with rewriting the entire Constitution. It was never
its intention to revise the whole Constitution. It merely concerns itself with amending a few provisions
in our fundamental charter.

When there are gray areas in legislation, especially in matters that pertain to the sovereign people's
political rights, courts must lean more towards a more liberal interpretation favoring the people's right
to exercise their sovereign power.

Conclusion

Sovereignty residing in the people is the highest form of sovereignty and thus deserves the highest
respect even from the courts. It is not something that can be overruled, set aside, ignored or
stomped over by whatever amount of technicalities, blurred or vague provisions of the law.

As I find RA 6735 to be adequate as the implementing law for the People's Initiative, I vote to grant
the petition in G.R. No. 174153 and dismiss the petition in G.R. No. 174299. The Amended Petition
for Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado should be remanded to the
COMELEC for determination whether or not the petition is sufficient under RA 6735, and if the
petition is sufficient, to schedule and hold the necessary plebiscite as required by RA 6735.

It is time to let the people's voice be heard once again as it was twenty years ago. And should this
voice demand a change in the Constitution, the Supreme Court should not be one to stand in its
way.

PRESBITERO J. VELASCO, JR.

Associate Justice

Footnotes

1
Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).

2 This provision states: "Requirements. — x x x x

(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum
(12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters
therein. Initiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.

(c) The petition shall state the following:

 c.1. contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2. the proposition;

c.3. the reason or reasons therefor;

c.4. that it is not one of the exceptions provided herein;

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

c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly
written or printed at the top of every page of the petition."

3This provision states: "Verification of Signatures. — The Election Registrar shall verify the
signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards
used in the immediately preceding election."

4 Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by law, to be
apportioned among the provinces, representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as
far as practicable, contiguous, compact and adjacent territory, and each province must have
at least one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least
twenty-five years old on the day of the election, a resident of his district for at least one year
prior thereto, and shall be elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the party-list system which
shall be provided for by law and whose number shall be equal to twenty per centum of the
total membership coming from the parliamentary districts.

5 Sections 1, 2, 3, and 4 of Article VII will be changed thus:

Section 1. There shall be a President who shall be the Head of State. The executive power shall be
exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be
elected by a majority of all the Members of Parliament from among themselves. He shall be
responsible to the Parliament for the program of government.

6 Sections 1-5 of the Transitory Provisions read:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their
term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the
1987 Constitution unless impeached by a vote of two thirds of all the members of the interim
parliament.

(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death,
permanent disability, resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers and responsibilities of
Prime Minister under Article VII as amended.

Section 2. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution
which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other
sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary system of government,
in which case, they shall be amended to conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to "Congress", "Senate",
"House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of Congress", "Senator[s]" or
"Member[s] of the House of Representatives" shall be changed to read as "Member[s] of
Parliament" and any and all references to the "President" and or "Acting President" shall be
changed to read "Prime Minister".

Section 3. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are
hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they
shall be deemed amended so as to conform to a unicameral Parliamentary System of
government; provided however that any and all references therein to "Congress", "Senate",
"House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of Congress", "Senator[s]" or
"Member[s] of the House of Representatives" shall be changed to read as "Member[s] of
Parliament" and any and all references to the "President" and or "Acting President" shall be
changed to read "Prime Minister".

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified. It shall be composed of the incumbent Members of the
Senate and the House of Representatives and the incumbent Members of the Cabinet who
are heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon
of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim Parliament and shall preside over its sessions
for the election of the interim Prime Minister and until the Speaker shall have been elected by
a majority vote of all the members of the interim Parliament from among themselves.

(3) Within forty-five days from ratification of these amendments, the interim Parliament shall
convene to propose amendments to, or revisions of, this Constitution consistent with the
principles of local autonomy, decentralization and a strong bureaucracy.

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from
among the members of the interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim Prime Minister shall oversee
the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President.
 (2) The interim Parliament shall provide for the election of the members of Parliament, which
shall be synchronized and held simultaneously with the election of all local government
officials. Thereafter, the Vice President, as Member of Parliament, shall immediately
convene the Parliament and shall initially preside over its session for the purpose of electing
the Prime Minister, who shall be elected by a majority vote of all

its members, from among themselves. The duly elected Prime Minister shall continue to
exercise and perform the powers, duties and responsibilities of the interim Prime Minister
until the expiration of the term of incumbent President and Vice President.

7As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a modified
paragraph 2, Section 5, thus:

Section 4. x x x x

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of
the thirtieth day of June 2010.

xxxx

Section 5. x x x x

(2) The interim Parliament shall provide for the election of the members of Parliament, which
shall be synchronized and held simultaneously with the election of all local government
officials. The duly elected Prime Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the expiration of the term of the
incumbent President and Vice President.

8 336 Phil. 848 (1997); Resolution dated 10 June 1997.

9 The COMELEC held:

We agree with the Petitioners that this Commission has the solemn Constitutional duty to
enforce and administer all laws and regulations relative to the conduct of, as in this case,
initiative.

This mandate, however, should be read in relation to the other provisions of the Constitution
particularly on initiative.

Section 2, Article XVII of the 1987 Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative, upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. x x x.

The Congress shall provide for the implementation of the exercise of this right.

The afore-quoted provision of the Constitution being a non self-executory provision needed
an enabling law for its implementation. Thus, in order to breathe life into the constitutional
right of the people under a system of initiative to directly propose, enact, approve or reject, in
 whole or in part, the Constitution, laws, ordinances, or resolution, Congress enacted
Republic Act No. 6735.

However, the Supreme Court, in the landmark case of Santiago vs. Commission on
Elections struck down the said law for being incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned.

The Supreme Court likewise declared that this Commission should be permanently enjoined
from entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.

Thus, even if the signatures in the instant Petition appear to meet the required minimum per
centum of the total number of registered voters, of which every legislative district is
represented by at least three per centumof the registered voters therein, still the Petition
cannot be given due course since the Supreme Court categorically declared R.A. No. 6735
as inadequate to cover the system of initiative on amendments to the Constitution.

This Commission is not unmindful of the transcendental importance of the right of the people
under a system of initiative. However, neither can we turn a blind eye to the pronouncement
of the High Court that in the absence of a valid enabling law, this right of the people remains
nothing but an "empty right", and that this Commission is permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution.

Considering the foregoing, We are therefore constrained not to entertain or give due course
to the instant Petition.

10Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine Transport
and General Workers Organization (PTGWO); Trade Union Congress of the Philippines; Sulong
Bayan Movement Foundation, Inc.

11Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa,
Jr., Susan V. Ople and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete Quirino
Quadra; Bayan, Bayan Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops Forum, Migrante,
Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Jojo Pineda, Dr. Darby
Santiago, Dr. Reginald Pamugas; Loretta Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa
Hontiveros-Baraquel, Luwalhati Ricasa Antonino; Philippine Constitution Association (PHILCONSA),
Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus,
Jr., Fortunato P. Aguas, and Amado Gat Inciong; Senate of the Philippines; Jose Anselmo I. Cadiz,
Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador and Randall C. Tabayoyong,
Integrated Bar of the Philippines, Cebu City and Cebu Province Chapters; Senate Minority Leader
Aquilino Q. Pimentel, Jr., and Senators Sergio R. Osmeňa III, Jamby Madrigal, Jinggoy Estrada,
Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and Pwersa ng Masang Pilipino.

12This provision states: "Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per centum
of the registered voters therein. No amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener than once every five years."

13 I RECORD, 387-388.
 During the deliberations of the Constitutional Commission, Commissioner Rene V. Sarmiento
14

made the following report (I RECORD 389):

MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments and
Transitory Provisions decided to retain the system of initiative as a mode of amending the
Constitution. I made a survey of American constitutions and I discovered that 13 States
provide for a system of initiative as a mode of amending the Constitution — Arizona,
Arkansas, California, Colorado, Massachusetts, Michigan, Missouri, Nebraska, Nevada,
North Dakota, Ohio, Oklahoma and Oregon. The initiative for ordinary laws only is used in
Idaho, Maine, Montana and South Dakota. So, I am happy that this was accepted or retained
by the Committee.

xxxx

The Americans in turn copied the concept of initiatives from the Swiss beginning in 1898
when South Dakota adopted the initiative in its constitution. The Swiss cantons experimented
with initiatives in the 1830s. In 1891, the Swiss incorporated the initiative as a mode of
amending their national constitution. Initiatives promote "direct democracy" by allowing the
people to directly propose amendments to the constitution. In contrast, the traditional mode
of changing the constitution is known as "indirect democracy" because the amendments are
referred to the voters by the legislature or the constitutional convention.

15Florida requires only that the title and summary of the proposed amendment are "printed in clear
and unambiguous language." Advisory Opinion to the Attorney General RE Right of Citizens to
Choose Health Care Providers, No. 90160, 22 January 1998, Supreme Court of Florida.

16State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59 Ariz.
211, 125 P.2d 445 (1942); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644
(1954); Christen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike Committee v. Town
Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336 (1979); State ex rel Evans v.
Blackwell, Slip copy, 2006 WL 1102804 (Ohio App. 10 Dist.), 2006-Ohio-2076.

17407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v. Conolly,
743 F. Supp. 922 (1990) and by the Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d.
1000 (1990), and cited in Marino v. Town Council of Southbridge, 13 Mass.L.Rptr. 14 (2001).

18 89 P.3d 1227, 1235 (2004).

19 Stumpf v. Law, 839 P. 2d 120, 124 (1992).

20
Exhibit "B" of the Lambino Group's Memorandum filed on 11 October 2006.

Annex "B" of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed on 7

21

September 2006.

22 www.ulap.gov.ph.

23 www.ulap.gov.ph/reso2006-02.html.

24The full text of the proposals of the Consultative Commission on Charter Change can be
downloaded at its official website at www.concom.ph.
25 The Lambino Group's Memorandum, p. 5.

26Under the proposed Section 1(2), Article VI of the Constitution, members of Parliament shall be
elected for a term of five years "without limitation as to the number thereof."

27Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the Constitution, the
interim Parliament "shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified." Also, under the proposed Section 5(2), Article XVIII, of the same
Transitory Provisions, the interim Parliament "shall provide for the election of the members of
Parliament."

28Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the Constitution, the
interim Parliament, within 45 days from ratification of the proposed changes, "shall convene to
propose amendments to, or revisions of, this Constitution."

29 448 So.2d 984, 994 (1984), internal citations omitted.

30 698 P.2d 1173, 1184 (1985).

31 I RECORD 386, 392, 402-403.

32 196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994).

33 392 P.2d 636, 638 (1964).

34 930 P.2d 186, 196 (1996), internal citations omitted.

35 Livermore v. Waite, 102 Cal. 113, 118-119 (1894).

36Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d 1281,
1286 (1978).

37 Id.

38 Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991).

39 California Association of Retail Tobacconists v. State, 109 Cal.App.4th 792, 836 (2003).

40 See note 44, infra.

41Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 1294
(2003).

42 238 So.2d 824 (1970).

43 Id. at 830-832.

44As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral
arguments.
45Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003, 415 SCRA 44;
J.M. Tuason & Co., Inc. v. Land Tenure Administration, 142 Phil. 393 (1970); Gold Creek Mining
Corporation v. Rodriguez, 66 Phil. 259 (1938).

46882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the amendment in
question was not a revision.

47 Section 1, Article V of the Constitution.

48 Section 11(1), Article XVI of the Constitution.

49 Section 2, Article VII of the Constitution.

50
This section provides: "The Philippines is a democratic and republican State. Sovereignty resides
in the people and all government authority emanates from them."

51 Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273 (1999).

52 G.R. No. 129754, Resolution dated 23 September 1997.

53Presidential Proclamation No. 58 dated February 11, 1987, entitled "Proclaiming the Ratification of
the Constitution of the Republic of the Philippines Adopted by the Constitutional Commission of
1986, including the Ordinance Appended thereto."

PANGANIBAN, CJ.:

1
Chief Justice McLachlin spoke on "Liberty, Prosperity and the Rule of Law" in her speech before
the Global Forum on Liberty and Prosperity held on October 18-20, 2006 in Manila. She further
stated: "Without the rule of law, government officials are not bound by standards of conduct. Without
the rule of law, the dignity and equality of all people is not affirmed and their ability to seek redress
for grievances and societal commitments is limited. Without the rule of law, we have no means of
ensuring meaningful participation by people in formulating and enacting the norms and standards
which organize the kinds of societies in which we want to live."

2
GR No. 127325, March 19, 1997, 336 Phil. 848. For ease of reference, my Separate Opinion is
reproduced in full:

"Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds
that:

'(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining
the 'initiatory' Delfin Petition.

'(2) While the Constitution allows amendments to 'be directly proposed by the people through
initiative,' there is no implementing law for the purpose. RA 6735 is 'incomplete, inadequate,
or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned.'

'(3) Comelec Resolution No. 2300, 'insofar as it prescribes rules and regulations on the
conduct of initiative on amendments to the Constitution, is void.'
 "I concur with the first item above. Until and unless an initiatory petition can show the
required number of signatures — in this case, 12% of all the registered voters in the
Philippines with at least 3% in every legislative district — no public funds may be spent and
no government resources may be used in an initiative to amend the Constitution. Verily, the
Comelec cannot even entertain any petition absent such signatures. However, I dissent most
respectfully from the majority's two other rulings. Let me explain.

"Under the above restrictive holdings espoused by the Court's majority, the Constitution
cannot be amended at all through a people's initiative. Not by Delfin, not by PIRMA, not by
anyone, not even by all the voters of the country acting together. This decision will effectively
but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the
basic law. At the very least, the majority holds the right hostage to congressional discretion
on whether to pass a new law to implement it, when there is already one existing at present.
This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article
XVII of the Constitution, as follows:

their final weapons against political excesses, opportunism, inaction, oppression and
misgovernance; as well as their reserved instruments to exact transparency, accountability
and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse
must be resolutely struck down, on the other, their legitimate exercise should be carefully
nurtured and zealously protected.

"WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to
DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground
of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT
the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in
proposing amendments to the Constitution."

3GR No. 129754, September 23, 1997 (still unpublished in the Philippine Reports or in the Supreme
Court Reports Annotated). Again, for ease of reference, I reproduce my Separate Opinion in full:

"Petitioners assail the July 8, 1997 Resolution of Respondent Commission dismissing their
petition for a people's initiative to amend the Constitution. Said petition before the Comelec
(henceforth, PIRMA petition) was backed up by nearly six (6) million signatures constituting
about 16% of the registered voters of the country with at least 3% in each legislative district.
The petition now before us presents two grounds:

"1. In refusing to act on the PIRMA petition, the Comelec allegedly acted with grave abuse of
discretion amounting to lack or excess of jurisdiction; and

"2. In declaring R.A. 6735 "inadequate to cover its system of initiative on amendments to the
Constitution" and "declaring void those parts of Resolution 2300 of the Commission on
Elections prescribing rules and regulations on the conduct of [an] initiative [on] amendments
to the Constitution," the Supreme Court's Decision in G.R. No. 127325 entitled Miriam
Defensor Santiago vs. Commission on Elections (hereafter referred to as Santiago) should
be reexamined because said Decision is allegedly "unconstitutional," and because, in any
event, the Supreme Court itself, in reconsidering the said issue per its June 10, 1997
Resolution, was deadlocked at six votes one each side.

"The following in my position on each of these two issues:

 First Issue:

No Grave Abuse of Discretion in Comelec's Refusal to Act

"The Respondent Commission's refusal to act on the "prayers" of the PIRMA petition cannot
in any wise be branded as "grave abuse of discretion." Be it remembered that the Court's
Decision in Santiago permanently enjoined the Comelec "from entertaining or taking
cognizance of any petition for initiative on amendments to the

4 Republic v. COCOFED, 423 Phil. 735, December 14, 2001.

5Well-entrenched is this definition of grave abuse of discretion. Id.; Benito v. Comelec, 349 SCRA
705, January 19, 2001; Defensor-Santiago v. Guingona Jr., 359 Phil. 276, November 18, 1998; and
Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994.

6 In PIRMA, I submitted as follows: "I believed, and still do, that the majority gravely erred in
rendering such a sweeping injunction [that covered ANY petition, not just the Delfin petition], but I
cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decision's
ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It had
no choice but to obey. Its obedience cannot constitute grave abuse of discretion. Regusal to act on
the PIRMA petition was the only recourse open to the Comelec. Any other mode of action would
have constituted defiance of the Court and would have been struck down as grave abuse of
discretion and contumacious disregard of this Court's supremacy as the final arbiter of justiciable
controversies."

742 Am. Jr. 2d, §26, citing Birmingham Gas Co. v. Bessemer; 250 Ala 137, 33 So 2d 475, 250 Ala
137; Tacker v. Board of Comrs., 127 Fla 248, 170 So 458; Hoxie V. Scott, 45 Neb 199, 63 NW 387;
Gill v. Board of Comrs., 160 NC 176, 76, SE 204.

8 Partido ng Manggagawa v. Comelec, GR No. 164702, March 15, 2006.

9 Article XVII (AMENDMENTS OR REVISIONS)

"SEC. 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon the vote of three-fourths of all its Members; or

(2) A constitutional convention.

"SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people
though initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once
every five years thereafter.

"SEC. 3. The Congress 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 to the electorate the question of
calling such a convention.
 "SEC. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be
valid when ratified by a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the approval of such amendment or
revision.

"Any amendment under Section 2 hereof shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety
days after the certification by the Commission on Elections of the sufficiency of the petition."

10 Republic Act 6735, Sec. 10, provides:

"SEC. 10. Prohibited Measures. – The following cannot be the subject of an initiative or
referendum petition:

(a) No petition embracing more than one subject shall be submitted to the electorate;
and

(b) Statutes involving emergency measures, the enactment of which are specifically
vested in Congress by the Constitution, cannot be subject to referendum until ninety
(90) days after its effectivity."

11The principle of separation of powers operates at the core of a presidential form of government.
Thus, legislative power is given to the legislature; executive power, to a separate executive (from
whose prominent position in the system, the presidential nomenclature is derived); and judicial
power, to an independent judiciary. This system embodies interdependence by separation.

On the other hand, a parliamentary system personifies interdependence by integration, its essential
features being the following: "(1) The members of the government or cabinet or the executive arm
are, as a rule, simultaneously members of the legislature. (2) The government or cabinet, consisting
of the political leaders of the majority party or of a coalition who are also members of the legislative,
is in effect a committee of the legislature. (3) The government or cabinet has a pyramidal structure,
at the apex of which is the Prime Minister or his equivalent. (4) The government or cabinet remains
in power only for as long as it enjoys the support of the majority of the legislature. (5) Both
government and legislature are possessed of control devices with which each can demand of the
other immediate political responsibility." These control devices are a vote of no-confidence
(censure), whereby the government may be ousted by the legislature; and the power of the
government to dissolve the legislature and call for new elections. (J. BERNAS, THE
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY, Vol. II, 17-18
(1988 ed.).

With respect to the transformation from a bicameral to a unicameral legislature, the change involves
the form of representation and the lawmaking process.

12 Attached to the Opposition-in-Intervention of Intervenors OneVoice Inc., etc., is a photocopy of the

Certification dated August 23, 2006, issued by Atty. Marlon S. Casquejo, the election officer for the
3rd District and the officer-in-charge for the 1st and the 2nd Districts of Davao City. The Certification
states that "this office (First, Second and Third District, Davao City) has not verified the signatures of
registered voters x x x."

13In People v. Veneracion, the Court held: "Obedience to the rule of law forms the bedrock of our
system of justice. If judges, under the guide of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the duties of their
office, then law becomes meaningless. A government of laws, not of men, excludes the exercise of
broad discretionary powers by those acting under its authority. Under this system, judges are guided
by the Rule of Law, and ought 'to protect and enforce it without fear or favor,' resist encroachments
by governments, political parties, or even the interference of their own personal beliefs." (249 SCRA
244, October 13, 1995, per Kapunan, J.)

14An American professor on legal philosophy, A. Altman, puts it thus: "By ratifying the constitution
that included an explicit amendment process, the sovereign people committed themselves to
following the rule of law, even when they wished to make changes in the basic system of
government." A. ALTMAN, ARGUING ABOUT LAW 94 (2001).

15See my Separate Opinion in Francisco Jr. v. House of Representatives, 415 SCRA 45, November
10, 2003.

16See, for instance, the front page Malaya report entitled "Lobbyists soil dignity of Supreme Court"
(October 23, 2006).

17 Lk 8:17.

YNARES-SANTIAGO, J.:

1 G.R. No. 127325, March 19, 1997, 270 SCRA 106.

2 SEC. 5. Requirements.— x x x

(c) The petition shall state the following:

c.1. contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2. the proposition;

c.3. the reason or reasons therefore;

c.4. that it is not one of the exceptions provided herein;

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

c.6. an abstract or summary proposition in not more than one hundred (100) words which
shall be legibly written or printed at the top of every page of the petition.

3 SEC. 3. Definition of Terms.— For purposes of this Act, the following terms shall mean: x x x

(d) "Proposition" is the measure proposed by the voters.

4 I Record, Constitutional Commission 387-389 (July 9, 1986).

5 Community Gas and Service Company, Inc. v. Walbaum, 404 P.2d 1014, 1965 OK 118 (1965).
6Section 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be
expressed in the title thereof.

7The late Senator (then Congressman) Raul S. Roco stated this fact in his sponsorship presentation
of H.B. No. 21505, thus:

xxxx

D. Prohibited Subjects.

The bill provides for two kinds of measures which cannot be the subject of an initiative or
referendum petition. A petition that embraces more than one subject cannot be submitted to
the electorate as it would be violative of the constitutional proscription on passing bills
containing more than one subject, and statutes involving emergency measures cannot be
subject to referendum until 90 days after its effectivity. [Journal and record of the house of
representatives, Second Regular Session, Vol. 6, p. 975 (February 14, 1989).]

8 Memorandum of petitioner Aumentado, p. 117.

9The proposed Section 4(3) of Article XVIII of the Constitution states that Senators whose term of
office ends in 2010 shall be members of parliament until noon of the thirtieth day of June 2010. No
counterpart provision was provided for members of the House of Representatives who, as members
of the interim parliament under the proposed changes, shall schedule the elections for the regular
parliament in its discretion.

10The proposed Section 4(3), Article XVIII of the Constitution states that the interim parliament shall
convene to propose amendments to, or revisions of, the Constitution within 45 days from ratification
of the proposed changes.

11The United Kingdom, for instance, has a two-house parliament, the House of Lords and the House
of Commons.

12Philippine Political Law [1954 ed.], Vicente G. Sinco, pp. 43-44, quoted in Separate Opinion of J.
Hilario G. Davide, Jr. in PIRMA v. COMELEC, G.R. No. 129754, September 23, 1997, p. 7.

13 151-A Phil. 35 (1973).

14 196 P. 2d 787 (Cal. 1948), cert. denied, 336 U.S. 918 (1949).

15 801 P. 2d 1077 (Cal. 1990).

16 583 P. 2d 1281 (Cal. 1982).

17 Raven v. Deukmeijan, supra, citing Brosnahan v. Brown, 651 P. 2d 274 (Cal. 1982).

18Supra note 13. It may well be pointed out that in making the distinction between amendment and
revision, Justice Antonio relied not only in the analogy presented in Wheeler v. Board of Trustees, 37
S.E. 2d 322, but cited also the seminal ruling of the California Supreme Court in McFadden v.
Jordan, supra.
 Philippine Political Law, 1995 ed., Justice Isagani A. Cruz, p. 71, citing Pangasinan Transportation
19

Co. v. PSC, 40 O.G., 8th Supp. 57.

20The 1987 Constitution of the Philippines: A Commentary, 1996 ed., Fr. Joaquin G. Bernas, S.J., p.
1161.

21 Id.

22 Supra note 14.

23The Constitution of the Republic of the Philippines, Vol. II, 1st ed., Fr. Joaquin G. Bernas, S.J., p.
567, citing B. Schwartz, I The Powers of Government (1963).

24
16 C.J.S. §3 at 24.

25 14 T.M. Cooley, II Constitutional Limitations, 8th ed. (1927), p. 1349.

A bogus revolution, Philippine Daily Inquirer, September 11, 2006, Fr. Joaquin Bernas, S.J., p.
26

A15.

27 Article II, Section 1 of the 1987 Constitution.

SANDOVAL-GUTIERREZ, J.:

1 Works, Letter 164.

2 G.R. No. 127325, March 19, 1997, 270 SCRA 106.

3 Resolution dated June 10, 1997, G.R. No. 127325.

4G.R. No. 129754, September 23, 1997. Joining PIRMA as petitioners were its founding members,
spouses Alberto Pedrosa and Carmen Pedrosa.

5 Entitled "In the Matter of Proposing Amendments to the 1987 Constitution through a People's
Initiative: A Shift from a Bicameral Presidential to a Unicameral Parliamentary Government by
Amending Articles VI and VII; and Providing Transitory Provisions for the Orderly Shift from the
Presidential to the Parliamentary System."

6Among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III,
Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr., Alternative Law Groups, Inc.,
Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmeña III, Jamby A.S.
Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada,
Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel,
Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's
Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby
Santiago and Reginald Pamugas, and Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D.
Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong.

7 "Grounds for contempt

 3. From the time the so-called People's Initiative (hereafter PI) now subject of Lambino v.
Comelec, was initiated, respondents did nothing to stop what was clearly lawless, and
even arguably winked at, as it were, if not condoned and allowed, the waste and
misuse of its personnel, time, facilities and resources on an enterprise that had no
legal basis and in fact was permanently enjoined by this Honorable Court in
1997. Seemingly mesmerized, it is time to disenthrall them.

3.1. For instance, undersigned counsel happened to be in the Senate on August 29, 2006
(on other business) when respondent Chair sought to be stopped by the body from
commenting on PI out of prudential considerations, could not be restrained. On contentious
issues, he volunteered that Sigaw ng Bayan would not cheat in Makati as it was the
opposition territory and that the fact that out of 43,405 signatures, only 7,186 were
found authentic in one Makati District, to him, showed the "efficiency" of Comelec
personnel. He could not appreciate 1) that Sigaw had no choice but to get the
constitutionality-required 3% in every district, [Const., Art. VII, Sec. 2] friendly or
otherwise, including administration critics' turfs, and 2) that falsus in 36,319 (93.30%)
falsus in omnibus, in an exercise that could never be free, orderly, honest and
credible, another constitutional requirement. [Nothing has been heard about probing and
prosecuting the falsifiers.]

xxxxxxxxx

3.2. It was excessively obvious to undersigned and other observers that respondent
Chairman, straining at the leash, was lawyering for Sigaw ng Bayan in the Senate! It
was discomfiting that he would gloss over the seeming wholesale falsification of
96.30% of the signatures in an exercise with no credibility! Even had he been asked,
he should have pled to be excused from answering as the matter could come up
before the Comelec for an official collegial position (different from conceding that it is
enjoined).

xxxxxxxxx

4. Respondents Commissioners Borra and Romeo A. Brawner, for their part, even
issued widely-publicized written directives to the field, [Annex C, as to Commissioner
Brawner; that as to Commissioner Borra will follow.] while the Commission itself was
trying to be careful not to be explicit in what it was abetting implicitly, in hypocritical
defiance of the injunction of 1997.

8Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G.R. No. 72424, February 13,
1989, 170 SCRA 246.

9 Supra.

10Development Bank of the Philippines v. NLRC, March 1, 1995, 242 SCRA 59; Albert v. Court of
First Instance of Manila (Branch VI), L-26364, May 29, 1968, 23 SCRA 948.

11 56 O.G. 3546 cited in Albert v. Court of First Instance of Manila (Branch VI), id.

12 Supra.

13 Separate Opinion of Justice Ricardo J. Francisco, G.R. No. 129754, September 23, 1997.
14 G.R. No. 109645, March 4, 1996, 254 SCRA 234.

15Philippine National Bank v. Palma, G.R. No. 157279, August 9, 2005, 466 CSRA 307, citing
Moreno, Philippine Law Dictionary (1988), 3rd ed. (citing Santiago v. Valenzuela, 78 Phil. 397,
[1947]).

Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183, March 25, 1999, 305 SCRA 303, citing
16

Government v. Jalandoni, No. 837-R, August 30, 1947, 44 O.G. 1840.

Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale
17

University Press, 1921), pp. 33-34.

18 William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs, N.J.: Prentice Hall Inc.,) 1973, p. 49.

19 Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.

20 July 9, 1986. Records of the Constitutional Commission, No. 26.

21Bernas, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, 1996 Ed., p.

1161.

22 242 N. W. 891 259 Mich 212.

23 State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People v. Perkins 137, p. 55.

18 City of Midland v. Arbury 38 Mich. App. 771, 197 N.W. 2d 134.

25 Adams v. Gunter Fla, 238 So. 2d 824.

26 196 P.2d 787.

27 Adams v. Gunter Fla. 238 So.2d 824.

28 Mc Fadden v. Jordan, supra.

29 Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958).

Joaquin Bernas, Sounding Board: AMENDMENT OR REVISION, Philippine Daily Inquirer,

30

September 25, 2006.

31See Sections 8-12 for national initiative and referendum, and sections 13-19 for local initiative and
referendum.

32Section 2. Statement of Policy. – The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed.

33 Section 3. Definition of terms.-

 xxx

a.1. Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;

xxx

34 See Section 3(e).

35Section 5 (b) – A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters therein.
Initiative on the Constitution may be exercised only after five (5) years from the ratification of the
1987 Constitution and only once every five (5) years thereafter.

xxx

36Section 9 (b) – The proposition in an initiative on the Constitution approved by a majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.

37 7 How (48 US) 1 (1849).

38 328 US 549 (1946).

39 77 Phil. 192 (1946).

40
103 Phi. 1051 (1957).

41 G.R. No. 35546, September 17, 1974, 50 SCRA 559.

42 369 US 186 (1962).

43 G.R. No. 85344, December 21, 1989, 180 SCRA 496.

44 G.R. No. 88211, September 15, 1989, 177 SCRA 668.

45 Nos. L-36142, L-36164, L-36165, L-36236, and L-36283, March 31, 1973, 50 SCRA 30.

CALLEJO, SR., J.:

1Entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds
Therefor.

2 Section 2(1), Article IX-C, 1987 Constitution.

3 Petition, pp. 12-14.

4Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368, August 25, 2003, 409 SCRA
455, 480.
5 Rodson Philippines, Inc. v. Court of Appears, G.R. No. 141857, June 9, 2004, 431 SCRA 469, 480.

6 People v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431 SCRA 610.

7Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares Construction Co., G.R. No. L-35630,
November 25, 1982, 118 SCRA 664.

8 People v. Court of Appeals, supra.

9 G.R. No. 127325, March 19, 1997, 270 SCRA 106.

Article 8, New Civil Code provides that "[j]udicial decisions applying or interpreting the laws or the
10

Constitution shall form part of the legal system of the Philippines."

11 Suson v. Court of Appeals, G.R. No. 126749, August 27, 1997, 278 SCRA 284.

12 Calderon v. Carale, G.R. No. 91636, April 23, 1992, 208 SCRA 254.

13 974 S.W.2d 451 (1998).

14 Id. at 453.

15Entitled In Re: Rules and Regulations Governing the Conduct of Initiative in the Constitution, and
Initiative and Referendum on National and Local Laws.

16 Supra note 10, p. 157.

17 G.R. No. 129754.

18 Minute Resolution, September 23, 1997, pp. 1-2.

19 Republic v. De los Angeles, No. L-26112, October 4, 1971, 41 SCRA 422.

20 Albert v. Court of First Instance of Manila, No. L-26364, May 29, 1968, 23 SCRA 948.

21Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA
506.

22Then Chief Justice Andres R. Narvasa, Justices Florenz D. Regalado, Flerida Ruth P. Romero,
Josue N. Bellosillo, Santiago M. Kapunan and Justo P. Torres, Jr. fully concurred in the ponencia of
Justice Davide.

23Justices Jose A.R. Melo, Vicente V. Mendoza, Reynato S. Puno, Ricardo J. Francisco, Jr. and
Artemio V. Panganiban (now Chief Justice).

The voting on the motion for reconsideration was as follows: Six Justices, namely, Chief Justice
24

Narvasa, and Justices Regalado, Davide, Jr., Romero, Bellosillo and Kapunan, voted to deny the
motions for lack of merit; and six Justices, namely, Justices Melo, Puno, Mendoza, Francisco, Jr.,
Regino C. Hermosisima and Panganiban voted to grant the same. Justice Vitug maintained his
opinion that the matter was not ripe for judicial adjudication. Justices Teodoro R. Padilla and Torres
inhibited from participation in the deliberations.

25 House Bill No. 457 filed by then Rep. Nachura during the Twelfth Congress.

26 See Pagdayawon v. Secretary of Justice, G.R. No. 154569, September 23, 2002, 389 SCRA 480.

27London Street Tramways Co., Ltd. v. London County Council, [1898] A.C. 375, cited in COOLEY,
A Treatise on the Constitutional Limitations 117-118.

28 Amended Petition for Initiative, pp. 4-7.

29 Id. at 7.

30 I Records of the Constitutional Commission 373.

31 Id. at 371.

32 Id. at 386.

33 Id. at 392.

34 Id. at 402-403.

35 No. L-36142, March 31, 1973, 50 SCRA 30.

36 Id. at 367.

37 SINCO, Philippine Political Law 43-44.

38 37 S.E.2d 322 (1946).

39 Id. at 330.

40 Id.

41 Sounding Board, Philippine Daily Inquirer, April 3, 2006.

42 Introduction to the Journal of the Constitutional Commission.

43 BLACK, Constitutional Law 1-2, citing 1 BOUV. INST. 9.

44 SCHWARTZ, CONSTITUTIONAL LAW 1.

45 Proclamation No. 58, 83 O.G. No. 23, pp. 2703-2704, June 8, 1987.

46 See McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909).

47 Id.
48 196 P.2d 787 (1948).

49 Id. at 798.

50 Ellingham v. Dye, 99 N.E. 1 (1912).

51 Dissenting Opinion of Justice Puno, p. 36.

52 Id. at 39.

53 Supra note 38.

54 McFadden v. Jordan, supra note 48.

55 Id. at 799.

56 Supra note 41.

57 Annex "1363."

58 Annex "1368."

59 Annex "1369."

60 Annex "1370."

61 Annex "1371."

62 Annex "1372."

63 Annex "1374."

64 Annex "1375."

65 Annex "1376."

66 Annex "1377."

67 Annex "1378."

68 Annex "1379."

69 Annex "1380."

70 Annex "1381."

71 Annex "1382."

72 Annex "1383."
73 Annex "1385."

74 Annex "1387."

75 Annex "1388."

76 Annex "1389."

77 Annex "1391."

78 Annex "1392."

79 Annex "1393."

80 Annex "1395."

81 Annex "1396."

82 Annex "1397."

83 Annex "1398."

84 Annex "1399."

85 Annex "1400."

86 Annex "1401."

87 Annex "1402."

88 Annex "1404."

89 Annex "1405."

90 Annex "1406."

91 Annex "1407."

92 Annex "1408."

93 Annex "1409."

94 Annex "1410."

95 Annex "1411."

96 Annex "1412."

97 Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004, 421 SCRA 423.
98 See, for example, Mendoza v. Court of Appeals, No. L-62089, March 9, 1988, 158 SCRA 508.

99 Licaros v. Sandiganbayan, G.R. No. 145851, November 22, 2001, 370 SCRA 394.

100 Codilla, Sr. v. De Venecia, G.R. No. 150605, December 10, 2002, 393 SCRA 639.

101 Teope v. People, G.R. No. 149687, April 14, 2004, 427 SCRA 540.

102 Tañada v. Cuenco, 103 Phil. 1051 (1957).

103 Id.

104 G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311-312.

105 Dissenting Opinion of Justice Fernando in Javellana v. Executive Secretary, supra note 36.

106 119 N.W. 408 (1909).

107 22 Minn. 400 (1876).

108 96 S.W. 396 (1906).

109 63 N.J. Law 289.

110 77 Miss. 543 (1900).

111 Section 1, Article II, 1987 Constitution.

112 Dissenting Opinion of Justice Puno, p. 49.

113 COOLEY, A Treatise on the Constitutional Limitations 56, cited in Ellingham v. Dye, supra.

114 Hunter v. Colfax Consol. Coal. Co., 154 N.W. 1037 (1915).

ALTMAN, ARGUING ABOUT THE LAW 94 (2001), citing AGRESTO, THE SUPREME COURT
115

AND CONSTITUTIONAL DEMOCRACY (1984)

116 McBee v. Brady, 100 P. 97 (1909).

117 McFadden v. Jordan, supra note 48.

118 Cooley, Am.Law.Rev. 1889, p. 311, cited in Ellingham v. Dye, supra.

119 15 N.W. 609 (1883).

120 Id. at 630.

AZCUNA, J.:
1 G.R. No. 127325, March 19, 1997 and June 10, 1997.

2 100 Phil. 501 (1956).

PUNO, J.:

1 M'cCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819).

2 Section 1, Article II, 1987 Constitution.

3 270 SCRA 106, March 19, 1997.

4 Id. at 153.

5 Id. at 157.

6Justice Teodoro R. Padilla did not take part in the deliberation as he was related to a co-petitioner
and co-counsel of petitioners.

7Justice Davide (ponente), Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo, and
Kapunan.

8 Resolution dated June 10, 1997, G.R. No. 127325.

9People's Initiative for Reforms, Modernization and Action (PIRMA) v. Commission on

Elections, G.R. No. 129754, September 23, 1997.

10 Amended Petition for Initiative, pp. 4-7.

11 G.R. No. 127325, March 19, 1997, 270 SCRA 106.

12 Petition, pp. 12-14.

13 Advisory issued by Court, dated September 22, 2006.

14 Exhibit "B," Memorandum of Petitioner Lambino.

15Barnhart, Principled Pragmatic Stare Decisis in Constitutional Cases, 80 Notre Dame Law Rev.,
1911-1912, (May 2005).

16 Ibid.

17 Id. at 1913.

18Consovoy, The Rehnquist Court and the End of Constitutional Stare Decisis: Casey, Dickerson
and the Consequences of Pragmatic Adjudication, 53 Utah Law Rev. 53, 67 (2002).

19 Id. at 68.

20 Id. at 69.
21 Id. at 67.

22 Id. at 69.

23 Consovoy, supra note 18, at 57.

24 Id. at 58.

25 Id. at 64.

26 Burnet v. Coronado Oil & Gas Co., 285 U.S. 405-06 (1932) (Justice Brandeis, dissenting).

27 Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-492 (Justice Frankfurter, concurring).

28 Commissioner of Internal Revenue v. Fink, 483 U.S. 89 (1987) (Justice Stevens, dissenting).

29 Barnhart, supra note 15, at 1922.

30 Id. at 1921.

Filippatos, The Doctrine of Stare Decisis and the Protection of Civil Rights and Liberties in the
31

Rehnquist Court, 11 Boston College Third World Law Journal, 335, 343 (Summer 1991).

32 347 U.S. 483 (1954).

33 163 U.S. 537 (1896).

34 G.R. No. 127882, December 1, 2004, 445 SCRA 1.

35 G.R. No. 139465, October 17, 2000, 343 SCRA 377.

36 Barnhart, supra note 15, at 1915.

37 112 S.Ct. 2791 (1992).

38 Section 5(b).

39 Ibid.

40 Santiago v. Commission on Elections, supra note 11, at 145.

41 85 Record of the House of Representatives 140-142 (February 14, 1989).

42 85 Record of the house of representatives 142-143 (February 14, 1989).

43 Zeringue v. State Dept. of Public Safety, 467 So. 2d 1358.

44 I RECORD, CONSTITUTIONAL COMMISSION 386, 392 (July 9, 1986).

45 Id. at 400, 402-403.

46 v record, constitutional commission 806 (October 10, 1986).

47 Opposition-in-Intervention filed by ONEVOICE, p. 39.

48 Opposition-in-Intervention filed by Alternative Law Groups, Inc., p. 30.

49 Introduction to Political Science, pp. 397-398.

50 Section 1, Art. II of the 1987 Constitution.

51 Eighth Edition, p. 89 (2004).

52 Ibid.

53 Id. at 1346.

54 Ibid.

55 Third Edition, p. 67 (1969).

56 Id. at 68.

57 Id. at 1115.

58 Vicente G. Sinco, Philippine Political Law, 2nd ed., p. 46.

59Concurring Opinion of Mr. Justice Felix Q. Antonio in Javellana v. The Executive Secretary, No. L-
361432, March 31, 1973, 50 SCRA 30, 367-368.

60 J. M. Aruego, The New Philippine Constitution Explained, iii-iv (1973).

61 E. Quisumbing-Fernando, Philippine Constitutional Law, pp. 422-425 (1984).

62 N. Gonzales, Philippine Political Law 30 (1969 ed.).

63Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317,
337 quoting Commonwealth v. Ralph, 111 Pa. 365, 3 Alt. 220 (1886).

64 L-36142, March 31, 1973, 50 SCRA 30, 367.

65 i record, constitutional commission 373 (July 8, 1986).

66 The opinion was actually made by Justice Felix Antonio.

67Javellana v. Executive Secretary, supra note 64, citing Wheeler v. Board of Trustees, 37 S.E.2d
322, 327 (1946).

68 T. M. Cooley, I A Treatise on Constitutional Limitations 143-144 (8th ed. 1927).

69 H.C. Black, Handbook of American Constitutional Law S. 47, p. 67 (2nd ed. 1897).

70 V. Sinco, supra note 58.

71 Ibid.

72 No. L-1232, 79 Phil. 819, 826 (1948).

73 IV RECORD, CONSTITUTIONAL COMMISSION 735 (September 17, 1986).

74 Id. at 752.

75 Id. at 769.

76 Id. at 767-769.

77 Id. at 377.

78 Id. at 395.

79 Sinco, supra note 58, at 22.

80 Id. at 20-21.

81 Frivaldo v. Commission on Elections, G.R. No. 120295, June 28, 1996, 257 SCRA 727.

82 G. Wood, The Creation of the American Republic, 530.

83 Sinco, supra note 58, at 29.

84 State v. Moore, 103 Ark 48, 145 SW 199 (1912); Whittemore v. Seydel, 74 Cal App 2d 109 (1946).

85 Town of Whitehall v. Preece, 1998 MT 53 (1998).

86 G.R. No. 125416, September 26, 1996, 262 SCRA 492, 516-517, citing 42 Am. Jur. 2d, p. 653.

87 Memorandum for petitioner Aumentado, pp. 151-152.

88 Id. at 153-154.

89 L-44640, October 12, 1976, 73 SCRA 333, 360-361.

90 Section 2, Article XVII, 1987 Constitution.

91 Annex "3," Opposition-In-Intervention of Oppositors-Intervenors ONEVOICE, INC., et al.

Certification dated April 21, 2006 issued by Reynne Joy B. Bullecer, Annex "B," Memorandum of
92

Oppositor-Intervenor Pimentel, et al.; Certification dated April 20, 2006 issued by Atty. Marlon S.
Casquejo, Annex "C," Memorandum of Oppositor-Intervenor Pimentel, et al.; Certification dated April
26, 2006 issued by Atty. Marlon S. Cascuejo, Annex "D," Memorandum of Oppositor-Intervenor
Pimentel, et al.

93 Annex "1," Memorandum of Oppositor-Intevenor Antonino.

94 Annex "10-A," Memorandum of Oppositor-Intevenor Joseph Ejercito Estrada, et al.

95 Annexes 1-29, Memorandum of Oppositor-Intevenor Alternative Law Groups, Inc.

96 Annexes 30-31, Id.

97 Annexes 44-64, Id.

98 Consolidated Reply of Petitioner Aumentado, p. 54.

99 Exhibit "E," Memorandum of Petitioner Lambino.

100 Annex "A," Consolidated Response of Petitioner Aumentado.

101 Memorandum of Oppositor-Intevenor Pimentel, et al., pp. 12-13.

102 Helvey v. Wiseman, 199 F. Supp. 200, 8 A.F.T.2d 5576 (1961).

103 BNO Leasing Corp. v. Hollins & Hollins, Inc., 448 So.2d 1329 (1984).

104 ASSOCIATE JUSTICE CARPIO:

How many copies of the petition, that you mention(ed), did you print?

ATTY. LAMBINO:

We printed 100 thousand of this petition last February and we

distributed to the different organizations that were volunteering to support us.

ASSOCIATE JUSTICE CARPIO:

So, you are sure that you personally can say to us that 100 thousand of

these were printed?

ATTY. LAMBINO:

It could be more than that, Your Honor.

xxxxxxxxxxxx

ASSOCIATE JUSTICE CARPIO:

But you asked your friends or your associates to re-print, if they can(?)

ATTY. LAMBINO:

Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO:

Okay, so you got 6.3 Million signatures, but you only printed 100

thousand. So you're saying, how many did your friends print of the petition?

ATTY. LAMBINO:

I can no longer give a specific answer to that, Your Honor. I relied

only to the assurances of the people who are volunteering that they are going to

reproduce the signature sheets as well as the draft petition that we have given them, Your
Honor.

xxxxxxxxxxxx

ASSOCIATE JUSTICE CARPIO:

Did you also show this amended petition to the people?

ATTY. LAMBINO:

Your Honor, the amended petition reflects the copy of the original

petition that we circulated, because in the original petition that we filed before the
COMELEC, we omitted a certain paragraph that is, Section 4 paragraph 3 which were part of
the original petition that we circulated and so we have to correct that oversight because that
is what we have circulated to the people and we have to correct that…

ASSOCIATE JUSTICE CARPIO:

But you just stated now that what you circulated was the petition of

August 25, now you are changing your mind, you're saying what you circulated was the
petition of August 30, is that correct?

ATTY. LAMBINO:

In effect, yes, Your Honor.

ASSOCIATE JUSTICE CARPIO:

So, you circulated the petition of August 30, but what you filed in the
COMELEC on August 25 was a different petition, that's why you have to amend it?

ATTY. LAMBINO:

We have to amend it, because there was an oversight, Your Honor, that

we have omitted one very important paragraph in Section 4 of our proposition.

xxxxxxxxxxxx

ASSOCIATE JUSTICE CARPIO:

Okay, let's be clear. What did you circulate when you gathered the

signatures, the August 25 which you said you circulated or the August 30?

ATTY. LAMBINO:

Both the August 25 petition that included all the provisions, Your

Honor, and as amended on August 30. Because we have to include the one that

we have inadvertently omitted in the August 25 petition, Your Honor.

xxxxxxxxxxxx

ASSOCIATE JUSTICE CARPIO:

And (you cannot tell that) you can only say for certain that you printed

100 thousand copies?

ATTY. LAMBINO:

That was the original printed matter that we have circulated by the

month of February, Your Honor, until some parts of March, Your Honor.

ASSOCIATE JUSTICE CARPIO:

That is all you can assure us?

ATTY. LAMBINO:

That is all I can assure you, Your Honor, except that I have asked some

friends, like for example (like) Mr. Liberato Laos to help me print out some more of this
petition… (TSN, September 26, 2006, pp. 7-17)
105 Section 2 (1), Article IX – C, 1987 Constitution.

106Chief Justice Andres R. Narvasa and Justices Hilario G. Davide, Jr., Florenz D. Regalado, Flerida
Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo
P. Torres.

107Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and
Artemio V. Panganiban.

108 Justice Jose C. Vitug.

Only fourteen (14) justices participated in the deliberations as Justice Teodoro R. Padilla took no
109

part on account of his relationship with the lawyer of one of the parties.

110 Citing conscience as ground.

111 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

Trans World Airlines, Inc. v. Hardison, 97 S. Ct. 2264 (1977); Arkansas Writers' Project, Inc. v.
112

Ragland, 107 S. Ct. 1722, 1730 n. 7, 95 L. Ed. 2d (1987); France v. Nelson, 292 Ark. 219, 729 S.W.
2d 161 (1987).

113 40 P. 3d 886 (2006).

114 781 P. 2d 973 (Alaska, 1989).

115
Id. at 982-84 (Compton, J., concurring).

116 Id. at 975-78.

117 Negri v. Slotkin, 244 N.W. 2d 98 (1976).

118 112 Fla. 734, 151 So. 284 (1933).

119 Penned by Justice Whitfield, and concurred in by Chief Justice Davis and Justice Terrell; Justices
Ellis, Brown and Buford are of the opinion that chapter 15938, Acts of 1933, is a special or local law
not duly advertised before its passage, as required by sections 20 and 21 of article 3 of the state
Constitution, and therefore invalid. This evenly divided vote resulted in the affirmance of the validity
of the statute but did not constitute a binding precedent on the Court.

120 62 S. Ct. 552 (1942).

121 329 F. 2d 541 (1964).

122 239 F. 2d 532 (9th Cir. 1956).

123 Citing Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621 (1910).

124 331 N.E. 2d 65 (1975).

125 Neil v. Biggers, supra note 108.

126 Catherwood v. Caslon, 13 Mees. & W. 261; Beamish v. Beamish, 9 H. L. Cas. 274.

Maglalang v. Court of Appeals, G.R. No. 85692, July 31, 1989, 175 SCRA 808, 811, 812;
127

Development Bank of the Philippines v. Pundogar, G.R. No. 96921, January 29, 1993, 218 SCRA
118.

No. L-35440, August 19, 1982, 115 SCRA 839, citing Anticamara v. Ong, No. L-29689, April 14,
128

1978, 82 SCRA 337.

129 Supra note 1.

QUISUMBING, J.:

1Political questions have been defined as "Questions of which the courts of justice will refuse to take
cognizance, or to decide, on account of their purely political character, or because their
determination would involve an encroachment upon the executive or legislative powers; e.g., what
sort of government exists in a state…." Black's Law Dictionary, p. 1319 citing Kenneth v. Chambers,
14 How. 38, 14 L.Ed. 316.

2 See 1987 Const., Art. XVII, Sec. 2.

3 G.R. No. 127325, March 19, 1997, 270 SCRA 106.

4 G.R. No. 129754, September 23, 1997.

CORONA, J.:

1 Abrams v. United States, 250 U.S. 616.

2 336 Phil. 848 (1997).

3 Santos v. Court of Appeals, G.R. No. 134787, 15 November 2005, 475 SCRA 1.

4 Feria and Noche, Civil Procedure Annotated, vol. I, 2001 edition, p. 419.

5Sec. 30, Petitions and initiatives by the people, 16 Am Jur 2d 380, citing State ex rel. Stenberg v.
Beermann, 240 Neb. 754, 485 N.W. 2d 151 (1992).

6Id. citing Coalition for Political Honesty v. State Board of Elections, 83 Ill. 2d 236, 47 Ill. Dec. 363,
415 N.E. 2d 368 (1980).

7 Balitzer, Alfred, The Initiative and Referendum: A Study and Evaluation of Direct Legislation, The
California Roundtable 13 (1981). The American Founding Fathers recognized that direct democracy
posed a profound threat to individual rights and liberty. The U.S. Constitution was "designed to
provide a system of government that would prevent either a tyranny of the majority or a tyranny of
the few." James Madison "warned against the power of a majority or a minority of the population
'united and actuated by some common impulse of passion, or of interest, adverse to the rights of
other citizens, or to the permanent and aggregate interest of the community.'
8Gilbert Hahn & Steven C. Morton, Initiative and Referendum – Do They Encourage or Impair Better
State Government? 5 FLA. ST. U. L. REV. 925, 927 (1977).

9Florida Advisory Council on Intergovernmental Relations, Initiatives and Referenda: Issues in

Citizen Lawmaking (1986).

10 Sec. 1, Article II, Constitution.

11 In re Initiative Petition No. 362 State Question 669, 899 P.2d 1145 (Okla. 1995).

TINGA, J.:

1 G.R. No. 127325, 19 March 1997, 270 SCRA 106.

2 G.R. No. 129754, 23 September 1997.

3 Petitioner Aumentado aptly refers to the comment of the late Senator Raul Roco that
the Santiago ruling "created a third specie of invalid laws, a mongrel type of constitutional but
inadequate and, therefore, invalid law." Memorandum for Aumentado, p. 54.

4 See Civil Code, Art. 9.

5 456 Phil. 1 (2003).

6Id., at 10; citing I Arturo M. Tolentino, Civil Code of the Philippines 43 (1990) and Justice Benjamin
N. Cardozo, The Nature of the Judicial Process 113 (1921).

7See Dissenting Opinion, Manila International Airport Authority v. City of Parañaque, G.R. No.
155650, 20 July 2006. In my ponencia in Globe Telecom v. NTC, G.R. No. 143964, 26 July 2004,
435 SCRA 110, I further observed that while an administrative agency was not enslaved to obey its
own precedent, it was "essential, for the sake of clarity and intellectual honesty, that if an
administrative agency decides inconsistently with previous action, that it explain thoroughly why a
different result is warranted, or if need be, why the previous standards should no longer apply or
should be overturned." Id., at 144. Happily, Justice Puno's present opinion expressly elucidates
why Santiago should be reversed.

8As Justice Frankfurter once wrote: "We recognize that stare decisis embodies an important social
policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy
reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of
adherence to the latest decision, however recent and questionable, when such adherence involves
collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by
experience… This Court, unlike the House of Lords, has from the beginning rejected a doctrine of
disability at self-correction." Helvering v. Hallock, 309 U.S. 106, 119-121 (1940).

9 351 Phil. 692 (1998).

As Chief Justice Panganiban then cited: "For instance, Ebralinag vs. Davision Superintendent of
10

Schools of Cebu, 219 SCRA 256, March 1, 1993, reversed the Court's 34-year-old doctrine laid
down in Gerona vs. Secretary of Education, 106 Phil 2, August 12, 1959, and upheld the right of
Jehovah's Witnesses "to refuse to salute the Philippine flag on account of their religious beliefs."
Similarly, Olaguer vs. Military Commission, 150 SCRA 144, May 22, 1987, abandoned the 12-year-
old ruling in Aquino Jr. vs. Military Commission, 63 SCRA 546, May 9, 1975, which recognized the
jurisdiction of military tribunals to try civilians for offenses allegedly committed during martial law.
The Court likewise reversed itself in EPZA vs. Dulay, 149 SCRA 305, April 29, 1987, when it vacated
its earlier ruling in National Housing Authority vs. Reyes, 123 SCRA 245, June 29, 1983, on the
validity of certain presidential decrees regarding the determination of just compensation. In the much
earlier case of Philippine Trust Co. vs. Mitchell, 59 Phil. 30, December 8, 1933, the Court revoked its
holding in Involuntary Insolvency of Mariano Velasco & Co., 55 Phil 353, November 29, 1930,
regarding the relation of the insolvency law with the then Code of Civil Procedure and with the Civil
Code. Just recently, the Court, in Kilosbayan vs. Morato, 246 SCRA 540, July 17, 1995, also
abandoned the earlier grant of standing to petitioner-organization in Kilosbayan vs. Guingona, 232
SCRA 110, May 5, 1994." Id., at 780.

11 Ibid.

12 129 Phil. 507, 516 (1967).

13 G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987, 153 SCRA 67, 75.

14 G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326.

15 Ibid.

16 G.R. No. 155855, 26 January 2004, 421 SCRA 92.

17Id., at 104. Relatedly, the Court held that "[c] ontests which do not involve the election, returns and
qualifications of elected officials are not subjected to the exercise of the judicial or quasi-judicial
powers of courts or administrative agencies". Ibid.

See e.g., Memorandum of Oppositors-Intervenors Senators Pimentel, Jr., et. al., pp. 19-22;
18

Memorandum for Intervenor Senate of the Philippines, pp. 34-35.

19 See 1987 Const., Art. VI, Sec. 26(1). See also Section 19[1]. 1987 Const, Art. VIII.

20See e.g., Sumulong v. COMELEC, 73 Phil. 288, 291 (1941); Cordero v. Hon. Jose Cabatuando, et
al., 116 Phil. 736, 741 (1962).

See Tio v. VRB, G.R. No. L-75697, 18 June 1987, 151 SCRA 208, 214-215; citing Public Service
21

Co., Recktenwald, 290 Ill. 314, 8 A.L.R. 466, 470. See also Fariñas v. Executive Secretary, G.R.
Nos. 147387 & 152161, 10 December 2003, 417 SCRA 503, 519.

22 "As a policy, this Court has adopted a liberal construction of the one title - one subject rule." Tatad
v. Secretary of Department of Energy, 346 Phil. 321, 359 (1997).

Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 & 83815; 22 February 1991, 194
23

SCRA 317.

24Id. at 337. I have previously expressed my own doubts in relying on the constitutional or legislative
deliberations as a definitive source of construction. "It is easy to selectively cite passages,
sometimes out of their proper context, in order to assert a misleading interpretation. The effect can
be dangerous. Minority or solitary views, anecdotal ruminations, or even the occasional crude
witticisms, may improperly acquire the mantle of legislative intent by the sole virtue of their
publication in the authoritative congressional record. Hence, resort to legislative deliberations is
allowable when the statute is crafted in such a manner as to leave room for doubt on the real intent
of the legislature." Southern Cross Cement Corporation v. Phil. Cement Manufacturers, G.R. No.
G.R. No. 158540, 8 July 2004, 434 SCRA 65, 95.

25 77 Phil. 192 (1946).

26 Id. at 215.

Civil Liberties Union v. Executive Secretary, supra note 23, at 338; citing Household Finance
27

Corporation v. Shaffner, 203 S.W. 2d 734, 356 Mo. 808.

28 See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2, Art. XVI.

29 G.R. No. 151944, January 20, 2004, 420 SCRA 365.

30 Id., at 377. Emphasis supplied.

31 See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2, Art. XVI.

From the "Funeral Oration" by Pericles, as recorded by Thucydides in the History of the
32

Peloponnesian War.

33 H. Zinn, A People's History of the United States (1980 ed.), at 95.

CHICO-NAZARIO, J.:

1 The full text of the Preamble reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just
and humane society and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop our patrimony, and secure to
ourselves and our posterity the blessings of independence and democracy under the rule of
law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.

2 Article XVII, Constitution.

3 G.R. No. 127325, 19 March 1997, 270 SCRA 106.

4 Id. at 157.

5 Id. at 124.

6Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213 SCRA 321, 328-329; See also the more
recent cases of Republic v. Nolasco, G.R. No. 155108, 27 April 2005, 457 SCRA 400; and PH Credit
Corporation v. Court of Appeals, 421 Phil. 821 (2001).

7 Supra note 2 at 124.

8 G.R. No. 129754.

9Separate Opinion of former Chief Justice Hilario G. Davide, Jr. to the Resolution, dated 23
September 1997, in G.R. No. 129754, PIRMA v. COMELEC, pp. 2-3.

10 Mirpuri v. Court of Appeals, 376 Phil. 628, 650 (1999).

11 Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, 16 October 1997.

12 Santiago v. Comelec, supra note 2 at 170-171.

13 Isagani A. Cruz, Philippine Political Law, 1996 ed., p. 352.

VELASCO, JR., J.:

1 G.R. No. 127535, March 19, 1997, 270 SCRA 106.

2 Id.

3Commission on Audit of the Province of Cebu v. Province of Cebu, G.R. No. 141386, November
29, 2001, 371 SCRA 196, 202.

4United Harbor Pilots' Association of the Philippines, Inc. v. Association of International Shipping
Lines, Inc., G.R. No. 133763, November 13, 2002, 391 SCRA 522, 533.

5PH Credit Corporation v. Court of Appeals and Carlos M. Farrales, G. R. No. 109648, November
22, 2001, 370 SCRA 155, 166-167.

6 Id.

7 Florentino v. Rivera, et al., G. R. No. 167968, January 23, 2006, 479 SCRA 522, 529.

8 G.R. No. 129754, September 23, 1997.

9 V. Sinco, Philippine Political Law, Principles and Concept 46 (1962).

 [G.R. No. L-66088. January 25, 1984.]

ALEX G. ALMARIO, ISAGANI M. JUNGCO, ESTANISLAO L. CESA, JR.,

DORINTINO FLORESTA, FIDELA Y. VARGAS, ET AL., Petitioners, v.
HON. MANUEL ALBA and THE COMMISSION ON
ELECTIONS, Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973

CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND
URBAN LAND REFORM; PROPOSALS BASED ON PRESENT CONSTITUTIONAL
PROVISIONS. — The present provisions of the Constitution are adequate to
support any program of the government for the grant of public lands to
qualified and deserving citizens or for the implementation of urban land
reform. Homesteads and free patents are "grants." We likewise see no
constitutional infirmity to a law passed by the Batasang Pambansa, under
the present Constitution, that would grant alienable and disposable lands of
the public domain not more than twenty four (24) hectares to any qualified
tenant, farmer, and other landless citizen in areas reserved by the President,
acting pursuant to such law.

2. ID.; ID.; ID.; NECESSITY OF PROPOSED AMENDMENTS TO DETERMINED

SOLELY BY THE PEOPLE. — The necessity, expediency, and wisdom of the
proposed amendments are beyond the power of the courts to adjudicate.
Precisely, whether or not "grant" of public land and "urban land reform" are
unwise or improvident or whether or not the proposed amendments are
unnecessary is a matter which only the people can decide. The questions are
presented for their determination.

3. ID.; ID.; ID.; PUBLICATION; REQUIREMENT FOR FAIR AND PROPER

SUBMISSION ADEQUATELY MET. — Batas Pambansa Blg. 643 directs the
COMELEC to publish the amendments. The respondents assure us that
publication in all provinces and cities, except a few where there are no local
newspapers, has been affected and that Barangays all over the country have
been enjoined to hold community gatherings for this purpose. The
Integrated Bar of the Philippines and various civic organizations have taken
a strong stand for or against the last two proposed questions. Television and
radio programs regularly broadcast the amendments. The petitioners have
failed to explain why, inspite of all the above, there is still fair and proper
submission.
FERNANDO, C.J., concurring:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973

CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND
URBAN LAND REFORM; PROPOSALS ALREADY AUTHORIZED UNDER THE
EXISTING CONSTITUTION. — Resolution No. 105 deals with the grant or
distribution of alienable and disposable lands of the public domain to
qualified tenants, farmers and other landless citizens. Resolution No. 113
deals with urban land reform and social housing program. They are, then,
immediately recognizable as logical and necessary extensions of the
fundamental principle of social justice enshrined as far back as the 1935
Constitution and expanded in the present Constitution. Our adoption of such
principle antedated the Universal Declaration of Human Rights by thirteen
years. To my mind, therefore, no question need arise under the standard of
proper submission.

PLANA, J., concurring:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973

CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND
URBAN LAND REFORM; PROPOSALS ALREADY AUTHORIZED UNDER THE
EXISTING CONSTITUTION. — Reflecting on Section 11, Article XIV and
Section 6, Article 11 of the 1973 Constitution, it seems evident that what is
sought to be adopted under Questions 3 and 4 of the forthcoming plebiscite
based on Resolutions Nos. 105 and 113 of the Batasang Pambansa, is
already authorized under the existing Constitution. The proposed
Constitutional amendments under Questions 3 and 4 would just be
confirmatory of a legislative power already existing, it stands to reason that
a protracted discussion of the proposed Constitutional amendments under
Questions 3 and 4 is neither necessary nor constitutionally required.

2. ID.; ID.; ID.; REQUIREMENT OF FAIR AND PROPER SUBMISSION

COMPLIED WITH. — There is compliance with Article XVI, Section 2 of the
Constitution, under which a proposed Constitutional amendment shall be
submitted to a plebiscite "which shall be held not later than 3 months after
the approval of such amendment." The proposed amendments under
Questions 3 and 4, as embodied in Resolutions 105 and 113 of the Batasang
Pambansa, were adopted on November 21 and December 19, 1983,
respectively. From November 21, 1983, when Resolution No. 105 was
adopted, up to January 27, 1984, there would be a spread of 67 days. On
the other hand, from December 19, 1983, when Resolution No. 113 was
adopted, up to January 27, 1984, there would be a spread of 39 days.

3. ID.; ID.; ID.; NO COMPELLING REASON FOR A SEPARATE PLEBISCITE

FOR THE APPROVAL OF QUESTIONED PROPOSALS. — There is no compelling
reason why so much of the people’s money should be spent for holding a
separate plebiscite when the purpose, by and large, of the second is merely
to confirm an existing Constitutional power.

TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973

CONSTITUTION; REQUIREMENT OF FAIR AND PROPER SUBMISSION. — The
doctrine of fair and proper submission to the people of proposed
constitutional amendments as enunciated by the Court in Tolentino v.
Comelec (41 SCRA 702, 729) mandates 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." There must be fair submission and intelligent consent or
rejection. As the late Justice Conrado V. Sanchez stressed in his separate
opinion in the earlier case of Gonzales v. Comelec, concurred in by the late
Chief Justice Fred Ruiz Castro and Justice Calixto Zaldivar, (21 SCRA 774,
817), the people must be "sufficiently informed of the amendments to be
voted upon, to conscientiously deliberate thereon, to express their will in a
genuine manner."cralaw virtua1aw library

2. ID.; ID.; ID.; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND
URBAN LAND REFORM; PEOPLE HAVE NOT BEEN GIVEN AMPLE TIME TO
COMPREHEND THE SIGNIFICANCE AND CONSEQUENCES THEREOF;
RATIFICATION OF THE AMENDMENTS IN A PLEBISCITE SHOULD BE
ENJOINED. — There has not been ample time and dissemination of
information to comprehend the significance, implications and complications
and consequences of the proposed amendments so as to comply with the
fundamental requirements of a fair and proper submission in order that the
people may intelligently approve or reject the same. It is, therefore, but
proper, in accordance with due process in dealing with such a fundamental
instrument as the Constitution which basically is a charter of limitation of the
powers of government, that the precipitate submittal on January 27, 1984 of
Questions Nos. 3 and 4 for the people’s ratification or rejection be enjoined.
It is far better to avail of the maximum 90-day period after the approval of
the proposed amendments for their submittal in a plebiscite so that the
people may at the proper time make their decision with the fullest possible
comprehension. During this interval, the separate and completely different
second additional paragraphs proposed to be inserted in Article XIV, section
12 of the Constitution in conflicting Resolutions Nos. 105 and 113 (103) as
pointed out on pages 2 and 5 hereof should be clarified. Otherwise, if the
plebiscite is held on the 27th, the people would just have to go by the
position taken by the State at the hearing of January 24th that their remedy
is to vote "No" against the proposed amendments which they do not
understand (or are "unnecessary").

ABAD SANTOS, J., separate opinion:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973

CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND
URBAN LAND REFORM; SUBMISSION OF PROPOSALS IN A PLEBISCITE TO
BE DEFERRED. — Partial relief should be granted to petitioners as there is
manifest basis for their claim that the citizenry has not been adequately
educated on the proposed amendments on grant of public lands and urban
land reform. The petitioners cite the case of Tolentino v. Comelec and
although the instant case does not fall squarely under said decision, that
case can serve as a guide in the resolution of this case. No question is raised
with respect to Questions 1 and 2 which have been thoroughly discussed in
public and private fora for which reason there is no cause to delay their
submission to the people. Preparations for the plebiscite on January 27,
1984, have reached the point of no return. questions 1 and 2 can and should
be submitted to the people on plebiscite day but Questions 3 and 4 should
be submitted at some other appropriate date.

MELENCIO-HERRERA, J., separate opinion:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; AMENDMENTS TO THE 1973 CONSTITUTION;

PROCEDURE ADOPTED THEREFOR SUBJECT TO JUDICIAL INQUIRY. — What
may be noted in Article XVI is that, besides the provision for the number of
votes necessary for the Batasan’s proposal to amend or revise the
Constitution, or to call a convention or propose to the people the calling of a
convention, the procedure for the revision or amendment of the Constitution
has not been established. Hence, the procedure shall be as the Batasan shall
adopt in the exercise of sound judgment, in the understanding that when it
does so, it acts only as a constituent assembly and not as a legislative body.
If the Batasan, as a constituent assembly, should provide for the revision or
amendment of the Constitution in a manner not consonant with
fundamentals of democracy and of good government, and its action is
challenged, this Court can assume jurisdiction to resolve the controversy.

2. ID.; ID.; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND

URBAN LAND REFORM; BATASANG PAMBANSA RESOLUTIONS PROPOSING
THE SAME SUBJECT TO THE PUBLICATION REQUIREMENT IN THE CIVIL
CODE. — Publication is a fundamental requirement for Resolution 105 and
Resolution 113 and it has been sought to be done in BP 643, a statutory law
setting January 27, 1984 for the plebiscite. In the same way that the people
are entitled to know what laws have been approved by the Batasan, through
their publication in the Official Gazette, the same requirement should be
followed in respect of resolutions proposing constitutional amendments.
Batas Pambansa Blg. 643, a statutory law setting January 27, 1984 for the
plebiscite, where the people can vote on the proposed constitutional
amendments, it should be published in the Official Gazette pursuant to the
provisions of the Civil Code. The Code provides that "laws shall take effect
after fifteen (15) days following the completion of their publication in the
Official Gazette, unless it is otherwise provided." The important factor in the
codal provision is the publication, and the date of effectivity of the law is of
secondary importance. I do not subscribe to the proposition that, when a
statute provides for the date of its effectivity it no longer needs to be
published. The provision should be interpreted such that when a statute
provides for the date of its effectivity, it shall not become effective after
fifteen days of publication but it shall be effective after publication, on the
date provided in the statute itself.

3. ID.; ID.; ID.; FAILURE OF EFFECTIVE PUBLICATION OF THE PROPOSED

AMENDMENTS. — A reading of the minimum standards set in Gonzalez v.
COMELEC, 21 SCRA 774 (1967) will readily show that principles of good
government require that, in a plebiscite for the revision of the Constitution,
aside from other standards set, the ballots should set out in full the
proposed constitutional amendments so that there can be no question that
when a citizen had voted "yes" or "no", he thoroughly knew what he had
voted for or against. Publication is for the general public. Individual notice
should also be given to the voter and this can be done easily through the
ballot that he will cast. Thus, in the case of non-resident defendants,
summons is published in a newspaper of general circulation but it is also
required that summons be served to him individually through registered mail
sent to his last known address. In the ballots to be prepared for the January
27 plebiscite, as mentioned in BP 643, the citizen is not made aware of the
exact amendments which have been proposed by the Batasan. Said law
merely makes mention of the amendments in substance. For example, anent
Question No. 3, that the "grant" is limited to 24 hectares is not stated.
Question No. 4 is not even indicated. Again, to my mind, there is failure of
effective publication. It is not enough that the citizen is expected, or
required, to read the newspapers and posted copies in public places.

4. ID.; ID.; ID.; ID.; PLEBISCITE TO RATIFY AMENDMENTS TO BE HELD

WITHIN 3 MONTHS FOLLOWING COMPLETION OF LAST PUBLICATION. — If
BP 643 is published in the Official Gazette, and the ballots for the plebiscite
should contain in full the proposed amendments to the Constitution, the
plebiscite can be held on a stated date within 3 months following the
completion of the last publication. The number of days after completion of
the last publication, whether it is ten days, one month, or three months, will
be a question which this Court will have no jurisdiction to resolve. It is very
clear in Article XVI of the Constitution that the plebiscite shall be held in so
many number of days after approval of the amendment provided they do not
exceed 3 months. The number of days is within the exclusive power of the
Batasan to determine.

RELOVA, J., separate opinion:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973

CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND
URBAN LAND REFORM; REQUIREMENT OF PROPER SUBMISSION NOT MET.
— It is safe to say that the people in the provinces are not, and by Friday
(January 27) will not be sufficiently informed of the meaning, nature and
effects thereof. Undersigned takes judicial notice of the fact that they have
not been afforded ample time to deliberate thereon conscientiously. As
stated by this Court in Tolentino v. Commission on Elections, 41 SCRA 702,
729, "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 case at
bar, it is sad to state that proposed Amendments 3 and 4 have not been
fairly laid before the people for their approval or rejection. In fact, said
proposed Amendments have only been translated into Tagalog and Cebuano.
There has been no translation thereof in the many other dialects in which
case it cannot be said that our people were afforded ample opportunity to
understand and deliberate over them.

RESOLUTION

GUTIERREZ, JR., J.:

As provided for in Batas Pambansa Blg. 643, the Filipino electorate will go to
the polls on January 27, 1984 to either approve or reject amendments to the
Constitution proposed by Resolution Nos. 104, 105, 110, 111, 112, and 113
of the Batasang Pambansa. The proposed amendments are embodied in four
(4) separate questions to be answered by simple YES or NO
answers.chanroblesvirtualawlibrary
Petitioners herein seek to enjoin the submission on January 27, 1984 of
Question Nos. 3 and 4, which cover Resolution Nos. 105 and 113, to the
people for ratification or rejection on the ground that there has been no fair
and proper submission following the doctrine laid down in Tolentino v.
COMELEC (41 SCRA 707). The petitioners do not seek to prohibit the holding
of the plebiscite but only ask for more time for the people to study the
meaning and implications of Resolution Nos. 105 and 113 until the nature
and effect of the proposals are fairly and properly submitted to the
electorate.

The questions to be presented to the electorate at the plebiscite

are:chanrob1es virtual 1aw library

QUESTION NO. 3

Do you vote for the approval of amendments to the Constitution as proposed

by the Batasang Pambansa in Resolution Numbered 105 which, in substance,
provide that grant shall be an additional mode for the acquisition of lands
belonging to the public domain and that the agrarian reform program may
include the grant or distribution of alienable lands of the public domain to
qualified tenants, farmers and other landless citizens.

QUESTION NO. 4

Do you vote for the approval of an amendment to the Constitution as

proposed by the Batasang Pambansa in its Resolution Numbered 113, adding
the following paragraph to Section 12 of Article XIV of the
Constitution:jgc:chanrobles.com.ph

"The State shall moreover undertake an urban land reform and social
housing program to provide deserving landless, homeless or inadequately
sheltered low income resident citizens reasonable opportunity to acquire
land and decent housing consistent with Section 2 of Article IV of this
Constitution."cralaw virtua1aw library

After a careful consideration of the issues raised in the petition for

prohibition with preliminary injunction, the answer of the Solicitor General,
and the arguments of the parties during the hearing on January 24, 1984,
the COURT Resolved to DISMISS the petition for lack of merit.

Section 2, Article XVI of the Constitution which states:chanrob1es virtual

1aw library

x x x
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.

allows a period of not more than three months for the conduct of information
campaigns. The sufficiency of the period during which amendments are
submitted to the people before they vote to either affirm or reject depends
on the complexity and intricacy of the questions presented. The petitioners
have failed to show that the addition of the one word "grant" to Section 11,
Article XIV to make the provision read:jgc:chanrobles.com.ph

". . . nor may any citizen hold such (alienable) lands (of the public domain)
by lease in excess of five hundred hectares or acquire by purchase,
homestead, or GRANT in excess of twenty four hectares. . ."cralaw
virtua1aw library

or that the addition of two paragraphs including one on urban land reform to
Section 12 of Article XIV to make it read:chanrob1es virtual 1aw library

SEC. 12. The State shall formulate and implement an agrarian reform
program aimed at emancipating the tenant from the bondage of the soil and
achieving the goals enunciated in this Constitution.

"SUCH PROGRAM MAY INCLUDE THE GRANT OR DISTRIBUTION OF

ALIENABLE AND DISPOSABLE LANDS OF THE PUBLIC DOMAIN TO
QUALIFIED TENANTS, FARMERS AND OTHER LANDLESS CITIZENS IN AREAS
WHICH THE PRESIDENT MAY BY OR PURSUANT TO LAW RESERVE FROM
TIME TO TIME, NOT EXCEEDING THE LIMITATIONS FIXED IN ACCORDANCE
WITH THE IMMEDIATELY PRECEDING SECTION.

"THE STATE SHALL MOREOVER UNDERTAKE AN URBAN LAND REFORM AND

SOCIAL HOUSING PROGRAM TO PROVIDE DESERVING LANDLESS,
HOMELESS OR INADEQUATELY SHELTERED LOW INCOME RESIDENT
CITIZENS REASONABLE OPPORTUNITY TO ACQUIRE LAND AND DECENT
HOUSING CONSISTENT WITH SECTION 2 OF ARTICLE IV OF THIS
CONSTITUTION."cralaw virtua1aw library

result in amendments of such nature that when the people go to the polls on
January 27, 1984 they cannot arrive at an intelligent judgment on their
acceptability or non-acceptability.
The present provisions of the Constitution are adequate to support any
program of the government for the grant of pub]ic lands to qualified and
deserving citizens or for the implementation of urban land reform.
Homesteads and free patents are "grants." We likewise see no constitutional
infirmity to a law passed by the Batasang Pambansa, under the present
Constitution, that would grant alienable and disposable lands of the public
domain not more than twenty four (24) hectares to any qualified tenant,
farmer, and other landless citizen in areas reserved by the President, acting
pursuant to such law. Nor is it correct to say that after the agrarian land
reform program now being implemented and the agitation for a similar
program in urban areas, the meaning of "urban land reform" is not yet
understood. Questions No. 3 and No. 4, if ratified with an affirmative vote,
will serve at most a symbolic purpose. That much the Solicitor General
conceded when he stated that the amendments under Question No. 3 serve
to confirm existing practice pursuant to long standing legislation. Any
interpretation of "grant" will, therefore, carry the weight of applicable
precedents which surround the associated words "homestead" and
"purchase" in the same clause of the Constitution. Similarly, any legislation
laying down the rules on urban land reform will have to survive the
constitutional tests of due process, equal protection, police power,
reasonable compensation, etc., now applied to agrarian land
reform.chanrobles virtual lawlibrary

More important, however, is that the necessity, expediency, and wisdom of

the proposed amendments are beyond the power of the courts to adjudicate.
Precisely, whether or not "grant" of public land and "urban land reform" are
unwise or improvident or whether or not the proposed amendments are
unnecessary is a matter which only the people can decide. The questions are
presented for their determination. Assuming that a member or some
members of this Court may find undesirable any additional mode of
disposing of public land or an urban land reform program, the remedy is to
vote "NO" in the plebiscite but not to substitute his or their aversion to the
proposed amendments by denying to the millions of voters an opportunity to
express their own likes or dislikes. The issue before us has nothing to do
with the wisdom of the proposed amendments, their desirability, or the
danger of the power being abused. The issue is whether or not the voters
are aware of the wisdom, the desirability, or the dangers of abuse. The
petitioners have failed to make out a case that the average voter does not
know the meaning of "grant" of public land or of "urban land reform."cralaw
virtua1aw library

As argued by the Solicitor-General:jgc:chanrobles.com.ph

"‘Agrarian reform program", for example, has been in the ‘consciousness of

the Filipino people’, to borrow a phrase from the petitioners, since 1972 with
the passage of P.D. No. 27 (Oct. 21, 1972), emancipating our tenants and
transferring to them ownership of the land they toil, without mentioning the
fact that even prior to this, there were several laws enacted attempting at
land reform, notably Rep. Act No. 3844 (1964), ordaining the agricultural
Land Reform Code and instituting land reforms in the country. More
importantly and more to the point, ‘grant’ or ‘land grant or distribution’ are
subject matters that have been in the ‘consciousness’ of the Filipino people
since Commonwealth days, with the enactment of Commonwealth Act No.
141, amending and compiling the previously scattered laws relative to the
conservation and disposition of lands of the public domain.

x x x

"Similarly, the Filipino people have long been since familiar with the topics of
‘urban land reform’ and ‘social housing’, beginning perhaps with the
country’s first zoning laws and, through all these years, with such laws as
Rep. Act No. 267 (1948), authorizing cities to purchase or expropriate home
sites and landed estates and subdivide them for resale at cost, P.D. No. 814
(1975), providing a land tenure system for the Tondo Foreshore Dagat-
Dagatan Urban Development Project, P.D. No. 933 (1976) creating the
Human Settlement Commission ‘to bring about the optimum use of land’,
Rep. Act No. 1322 (1955) creating the Philippine Homesite and Housing
Authority, and P.D. No. 1517, proclaiming an urban land reform in the
Philippines, to give but a few samples. . . ."cralaw virtua1aw library

Batas Pambansa Blg. 643 direct the COMELEC to publish the amendments.
The respondents assure us that publication in all provinces and cities, except
a few where there are no local newspapers, has been affected and that
Barangays all over the country have been enjoined to hold community
gatherings for this purpose. The Integrated Bar of the Philippines and
various civic organizations have taken a strong stand for or against the last
two proposed questions. Television and radio programs regularly broadcast
the amendments. The petitioners have failed to explain why, inspite of all
the above, there is still fair and proper submission.

On the bid for additional time, the respondents point out that Resolution No.
105 will have been submitted for sixty seven (67) days to the people on
Plebiscite Day while Resolution No. 113 will have been submitted for forty
two (42) days. The entire 1935 Constitution was submitted for ratification
thirty six (36) days after approval of Act No. 4200. The 1976 amendments
which admittedly are much more complicated, difficult to understand, and
novel and far-reaching in their implications were presented to the people for
only three (3) weeks. In Sanidad v. Commission on Elections (73 SCRA 333,
375), this was how this Court answered the issue of sufficient and proper
submission:jgc:chanrobles.com.ph

"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 v. COMELEC (21 SCRA 774). Associate
Justices Teehankee, and Muñoz 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 v. COMELEC (41 SCRA 702)."cralaw virtua1aw library

The undersigned ponente would like to add his personal views to this opinion
of the Court. On January 27, 1984, the average voter who goes to the
polling place and reads Question No. 3 will know whether or not he or she is
in favor of distributing alienable public lands through "grants" in addition to
leases, homesteads and purchases. Upon reading Question No. 4, the voter
will know whether or not he or she is in favor of an urban land reform
program. I personally find existing provisions of the Constitution more than
sufficient basis for legislation to achieve the objectives of the proposed
amendments. To me, the second question on the Vice-President vis-a-vis the
Executive Committee involves more complex and difficult issues involving as
it does a collegiate body as successor to the President. Yet, no one seems to
question its fair and proper submission. However, my personal feelings
about the merits or demerits of the third and fourth questions are entirely
distinct and separate from the issue of their fair and proper submission to
the electorate. Like any other voter, my remedy is to vote NO on any
proposal I find unwise or ill-advised and YES on those I favor. I respect the
views of those who may think differently.chanroblesvirtualawlibrary

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Fernando, C.J., Makasiar, Aquino, voting to dismiss for lack of a cause

action; Concepcion, Jr., Guerrero, De Castro, Plana and Escolin, JJ., concur.
 Separate Opinions

FERNANDO, C.J., concurring:chanrob1es virtual 1aw library

While recognizing the force and eloquence with which the late Justice
Sanchez in Gonzales and retired Justice Barredo in Tolentino expounded
their views on the question of proper submission, still for me — and from the
strict legal aspect as to the precise boundary which separates a question of
wisdom, which belongs to the political branches, and the question of power,
which the court is duty bound to inquire into — the opinion of Chief Justice
Concepcion in Gonzales, with which I concurred then, in the one that should
prevail. There is, for me, this added reinforcement to the conclusion I have
reached. Resolution No. 105 deals with the grant or distribution of alienable
and disposable lands of the public domain to qualified tenants, farmers and
other landless citizens. Resolution No. 113 deals with urban land reform and
social housing program. They are, then, immediately recognizable as logical
and necessary extensions of the fundamental principle of social justice
enshrined as far back as the 1935 Constitution and expanded in the present
Constitution. Our adoption of such principle antedated the Universal
Declaration of Human Rights by thirteen years. To my mind, therefore, no
question need arise under the standard of proper submission.chanrobles
virtual lawlibrary

PLANA, J., concurring:chanrob1es virtual 1aw library

Petitioners ask that the plebiscite set on January 27, 1984 on Questions 3
and 4 be deferred, leaving that on Questions 1 and 2 to proceed as
scheduled. Grant of the petition will therefore have the effect of having two
plebiscites.

Under the existing Constitution, plenary legislative power is vested in the

Batasang Pambansa, including the power to enact laws authorizing the
conveyance or grant of alienable public lands to deserving citizens under
prescribed terms and conditions. Indeed there are extant so many laws
providing for such disposition of public land.

Section 11 of Article XIV of the Constitution clearly recognizes the existence

of the power and, on that assumption, merely restricts the same by
providing that no citizen may "acquire by purchase or homestead (alienable
lands of the public domain) in excess of 24 hectares."cralaw virtua1aw
library

With respect to social justice measures which include urban land reform and
social housing program, the present Constitution provides —

"The State shall promote social justice to insure the dignity, welfare, and
security of all the people. Towards this end, the State shall regulate the
acquisition, ownership, use, enjoyment, and disposition of private property,
and equitably diffuse property ownership and profits." (Article II, Section 6.)

"The State shall formulate and implement an agrarian reform program aimed
at emancipating the tenant from the bondage of the soil and achieving the
goals enunciated in this Constitution." (Article XIV, Section 12.)

Reflecting on the foregoing Constitutional provisions, it seems evident that

what is sought to be adopted under Questions 3 and 4 of the forthcoming
plebiscite based on Resolutions Nos. 105 and 113 of the Batasang
Pambansa, is already authorized under the existing Constitution.

If the foregoing be correct and the proposed Constitutional amendments

under Questions 3 and 4 would just be confirmatory of a legislative power
already existing, it stands to reason that a protracted discussion of the
proposed Constitutional amendments under Questions 3 and 4 is neither
necessary nor constitutionally required.

At any rate, I find that there is compliance with Article XVI, Section 2 of the
Constitution, under which a proposed Constitutional amendment shall be
submitted to a plebiscite "which shall be held not later than 3 months after
the approval of such amendment." The proposed amendments under
Questions 3 and 4, as embodied in Resolutions 105 and 113 of the Batasang
Pambansa, were adopted on November 21 and December 19, 1983,
respectively. From November 21, 1983, when Resolution No. 105 was
adopted, up to January 27, 1984, there would be a spread of 67 days. On
the other hand, from December 19, 1983, when Resolution No. 113 was
adopted, up to January 27, 1984, there would be a spread of 39 days.

Finally, apart from legal considerations, I do not see any compelling reason
why so much of the people’s money should be spent for holding a separate
plebiscite when the purpose, by and large, of the second is merely to
confirm an existing Constitutional power.

I therefore vote to deny the petition.

TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library

I vote for the partial granting of the petition and for the elimination of
Questions Nos. 3 and 4 at the Plebiscite set on January 27, 1984.
The Comelec has formulated four plebiscite questions for approval or
rejection by the people of the latest proposed amendments to the
Constitution, as follows:chanrob1es virtual 1aw library

1. Election of the members of the Batasang Pambansa (National Assembly)

by provinces and cities and in the case of Metropolitan Manila, by districts,
instead of by regions;

2. Restoration of the office of Vice-President who shall succeed the President

in case of the latter’s death or incapacity, instead of the 15-member
Executive Committee designated by him;

3. The insertion of the word "grant" in Article XIV, section 11 of the

Constitution so as to provide for granting as an additional mode (besides
purchase and homestead as presently provided) for the disposition (although
the word "acquisition" is used in the question) of lands belonging to the
public domain; and

4. The insertion of a second paragraph in Article XIV, section 12 of the

Constitution so that the same would be amended to read, as
follows:jgc:chanrobles.com.ph

"SEC.12. The State shall formulate and implement an agrarian reform

program aimed at emancipating the tenant from the bondage of the soil and
achieving the goals enunciated in this Constitution.

"Such program may include the grant or distribution of alienable and

disposable lands of the public domain to qualified tenants, farmers and other
landless citizens in areas which the President may by or pursuant to law
reserve from time to time, not exceeding the limitations fixed in accordance
with the immediately preceding Section."cralaw virtua1aw library

(The underlined paragraph constitutes the proposed amendment by

insertion, under Resolution No. 105 of the Batasang Pambansa adopted on
November 21, 1983, entitled "Resolution Proposing Amendments to Sections
11 and 12 of Article XIV of the Philippine Constitution, as Amended." 1)
Under Resolution No. 113 of the Batasang Pambansa adopted on December
19, 1983, entitled "Resolution Proposing to Add a Last Paragraph to Section
12 of Article XIV of the Philippine Constitution in order to Provide for Urban
Land Reform and Social Housing Program," the proposed additional second
paragraph carries an entirely different wording, as
follows:jgc:chanrobles.com.ph
"The State shall moreover undertake an urban land reform and social
housing program to provide deserving landless, homeless or inadequately
sheltered low income resident citizens reasonable opportunity to acquire
land and decent housing consistent with Section 2 of Article IV of this
Constitution."cralaw virtua1aw library

(This additional second paragraph providing for the inclusion of an urban

land reform and social housing program appears to be the one submitted for
the people’s approval or rejection in accordance with available literature and
leaflets issued by the Comelec.)

The doctrine of fair and proper submission to the people of proposed

constitutional amendments as enunciated by the Court in Tolentino v.
Comelec (41 SCRA 702, 729) mandates 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." There must be fair submission and intelligent consent or
rejection. 2

As the late Justice Conrado V. Sanchez stressed in his separate opinion in

the earlier case of Gonzales v. Comelec, concurred in by the late Chief
Justice Fred Ruiz Castro and Justice Calixto Zaldivar, (21 SCRA 774, 817),
the people must be "sufficiently informed of the amendments to be voted
upon, to conscientiously deliberate thereon, to express their will in a genuine
manner."cralaw virtua1aw library

Questions Nos. 1 and 2 are not placed in issue by petitioners. As already

indicated, they ask for the approval or rejection of the proposed
amendments for restoration of the old office of Vice President of the Republic
and the old system of electing the members of the National Assembly by
provinces or by cities instead of by regions. These two proposed
constitutional amendments apparently bear the endorsement of the
Government and the party in power, the KBL, as well as by the opposition in
general who have long clamored for such restoration. Hence, there appears
to be no question as to their being fully understood by the people in the
same manner that they readily understood and approved the first
amendment to the 1935 Constitution of giving women the right to
vote.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

Questions Nos. 3 and 4, however, do present a problem. They appear to be

simple yet complex. Petitioners cite the separate joint concurring opinion of
Justice J.B.L. Reyes, Zaldivar, Ruiz Castro and Makasiar in the Tolentino case
which stopped the scheduled plebiscite on November 8, 1971 to allow 18-
year olds to vote, wherein the pungent remark was made that while the
proposed amendment "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."cralaw virtua1aw library

To start with, several members of this very Court who have turned down the
petition have expressed the view that the amendments proposed by
Questions Nos. 3 and 4 are "unnecessary," while others like Justice Abad
Santos have expressed their inability at this late date to comprehend the
nature and significance of the proposed amendments and their implications
and complexities.

The Solicitor General himself at the hearing held on January 24, 1984 stated
that in his personal (not official) perception, Question No. 3 adding the
single word "grant" as a mode of additional disposition of public lands was
"unnecessary", because "this has been done already. There are so many lots
which had been donated by the government granted for that building and
their constitutionality has never been questioned." And as to Question No. 4
which would insert a second additional paragraph to the present Article XIV,
section 12 of the Constitution to provide that the State shall undertake an
urban land reform and social housing program, the Solicitor General stated
at the same hearing that its utility would be to "eradicate completely" any
doubts about the Government’s expropriation program for the
purpose.chanrobles virtual lawlibrary

The Solicitor General in his answer to the petition further submits that the
proposed amendments are "relatively simple and easy to comprehend", as
follows:jgc:chanrobles.com.ph

"It is to be noted also that Resolutions 105 and 103 3 are relatively simple
and easy to comprehend, even as compared to the other four amendments
proposed for ratification at the same time and the submission of which are
not questioned by the petitioners. Resolution No. 105 which proposes to
amend Section 11, Art. XIV merely adds the word ‘grant’ and adds additional
paragraph in Section 12 of the same Article. The additional paragraph is
really nothing new for among the government’s policies, it has always been
the policy to make lands of the public domain available to tenants, farmers
and other landless citizens (see Sec. 13, Art XIV, Constitution). And as to
Resolution No. 103 which adopts as a State responsibility ‘urban reform and
housing program’ the policy is also not new and housing is, in point of fact,
already among the declared objectives of government (Section 7, Article XI
of the Constitution)." (Emphasis supplied)
Professor and former Dean Froilan M. Bacungan of the U.P. College of Law
shares the same view that the proposed amendments submitted with
Questions Nos. 3 and 4 are unnecessary, as follows:jgc:chanrobles.com.ph

"The proposed amendment to the agrarian reform program and urban land
reform and social housing program may be considered by constitutional law
experts as unnecessary.

"The 1973 Constitution now has, in addition to its specific provision on

agrarian reform, a very categorical provision on social justice where the
State is mandated to ‘promote social justice to ensure the dignity, welfare,
and security of all the people’ and where it continues to say: ‘Towards this
end, the State shall regulate the acquisition, ownership, use, enjoyment and
disposition of private property, and equitably diffuse property ownership and
profits.’

"It should also be noted that the Supreme Court, interpreting constitutional
law concepts such as ‘police power’ and ‘due process of law,’ has given very
much greater emphasis on the former and very much less emphasis on the
latter, when it comes to the interpretation of laws implementing economic,
social and cultural rights.

"But as emphasized by its proponents, these proposed amendments on

agrarian and urban land reform are most useful for they reinforce the
constitutional basis and mandate for government activities in these
fields."cralaw virtua1aw library

The Philippines Daily Express editorial of January 25, 1984 presents the
following justifications for urging a "Yes" vote to the questioned
amendments, as follows:jgc:chanrobles.com.ph

"As for the proposal to empower the government to grant public lands to
citizens, we believe that it is a move to enhance the development and
productivity of public lands which have been idle for a long time now. Many
of our countrymen are still landless, and if they are enterprising and
industrious enough to convert the great wilderness into a productive land,
they should be given all the chances to do so. The fear of some quarters that
the proposal will only spawn graft and corruption emanates from negative
thinking and suspicious minds.

"On the fourth question about urban land reform, it must be noted that the
proposal is nothing but a statement of national policy in the basic charter of
the land. There is already an existing law on urban land reform and it does
not authorize the grabbing of urban lands from private owners for
distribution to the landless. No government in its right senses would do that.

The premises of the newspaper would seem to be contradicted by the figures

given by Minister of Agrarian Reform Conrado Estrella in a newspaper of the
same date to the effect that only 3.26 million hectares of the Philippines’
total land area remain disposable, as follows:jgc:chanrobles.com.ph

"Estrella said the country has a total land area of 30 million hectares. Of
this, 13.371 million hectares are disposable, 11.07 million are timberland,
and 5.55 million unclassified.

"Of the 13.37 million hectares alienable lands, 2.75 are judicially registered,
7.35 million covered by land applications, and 3.26 million remain
disposable." 4

On the other hand, all the bar associations, including the compulsory
Integrated Bar of the Philippines and the voluntary bar associations, have
expressed grave doubts as to the questioned amendments. To cite a few
observations, Atty. Raul Roco, IBP President, "said the granting of such
properties could be a cause of corruption among public officials. He
compared the proposed amendment to the Spanish era when vast lands
were acquired by government supporters through royal grants." 5

Philippine Bar Association President Enrique P. Syquia "said the Constitution

itself embodies the policy of conserving the patrimony of the nation for all
Filipinos, including those yet unborn. But Syquia said the amendment would
allow these lands, including residential, commercial, industrial, educational,
charitable, and resettlement lands, to be given away freely to any Filipino
chosen at pleasure." 6

The Philippine Lawyers Association stated that "the proposed amendment,

which will allow these lands, including ‘residential, commercial, industrial,’
and other classes of land to be given away fully and freely on any Filipino
chosen at pleasure, goes against the very preamble of the Constitution.
These land grants may very well be the source of patronage, graft, and
corruption, it said." 7

All these go but to show that there has not been ample time and
dissemination of information to comprehend the significance, implications
and complications and consequences of the proposed amendments so as to
comply with the fundamental requirements of a fair and proper submission
in order that the people may intelligently approve or reject the same. It is,
therefore, but proper, in accordance with due process in dealing with such a
fundamental instrument as the Constitution which basically is a charter of
limitation of the powers of government, that the precipitate submittal on
January 27, 1984 of Questions Nos. 3 and 4 for the people’s ratification or
rejection be enjoined. It is far better to avail of the maximum 90-day period
after the approval of the proposed amendments for their submittal in a
plebiscite so that the people may at the proper time make their decision with
the fullest possible comprehension. During this interval, the separate and
completely different second additional paragraphs proposed to be inserted in
Article XIV, section 12 of the Constitution in conflicting Resolutions Nos. 105
and 113 (103) as pointed out on pages 2 and 5 hereof should be clarified.
Otherwise, if the plebiscite is held on the 27th, the people would just have to
go by the position taken by the State at the hearing of January 24th that
their remedy is to vote "No" against the proposed amendments which they
do not understand (or are "unnecessary").chanrobles virtual lawlibrary

ABAD SANTOS, J.:

Once again the Filipino people are asked to approve or reject amendments
to the 1973 Constitution.

The Batasan Pambansa, convened as a constituent assembly, approved six

(6) resolutions, namely:chanrob1es virtual 1aw library

1. Resolution No. 104 proposing to amend Sections Two and Four, Article
VIII of the Constitution by providing that Members of the Batasang
Pambansa shall be apportioned among the provinces, cities and Metropolitan
Manila or its districts.

2. Resolution No. 105 proposing amendments to Section 11 and 12 of Article

XIV of the Philippine Constitution, as amended.

3. Resolution No. 110 proposing amendments to the Constitution to establish

a different mode of presidential succession by creating the Office of Vice-
President and abolishing the Executive Committee.

4. Resolution No. 111 proposing to amend Section 1 of Article IX of the

Constitution by providing that at least a majority of the Members of the
Cabinet who are heads of ministries shall come from the provincial, city or
district representatives of the Batasang Pambansa.

5. Resolution No. 112 providing for an Ordinance to be appended to the

Constitution apportioning the Members of the Batasang Pambansa to the
different provinces with their component cities, highly urbanized cities, and
the districts of Metropolitan Manila.
6. Resolution No. 113 proposing to add a last paragraph to Section 12 of
Article XIV of the Philippine Constitution in order to provide for urban land
reform and social housing program.

In the plebiscite scheduled to be held on January 27, 1984 —

Question No. 1 deals with Resolutions Numbered 104, 111 and 112;

Question No. 2 deals with Resolution Numbered 110;

Question No. 3 deals with Resolution Numbered 105; and

Question No. 4 deals with Resolution Numbered 113.

The petition in this case is confined to questions numbered 3 and 4. The

petition recites:jgc:chanrobles.com.ph

"5. Petitioners respectfully submit that of the six (6) proposed amendments,
Proposal No. 5 (Resolution Nos. 105 adopted by the Batasang Pambansa on
November 2, 1983), which would empower the President of the Philippines
to grant alienable lands of the public domain to individuals and landless
citizens, and Proposal No. 6 (Resolution No. 113, adopted by the Batasang
Pambansa on December 19, 1983), which provides for urban land reform
and social housing program, have not yet been properly and fairly submitted
to the understanding of the Filipino people.

"6. These two mentioned proposals bear far-reaching implications, and are
bound to affect existing Constitutional and statutory provisions as well as
Supreme Court holdings on acquisition and/or disposition of public lands and
on property rights particularly in urban areas, that said proposals ought first
to be thoroughly explained to the people before they are made to vote for
their approval or disapproval. Such is the import of the doctrine of fair and
proper submission (Tolentino v. COMELEC, 41 SCRA 707 [1971]).

"7. Petitioners are not aware of any campaign by the COMELEC, nor by any
other governmental agency, endeavoring to register in the consciousness of
the Filipino people the rationale behind Resolution Nos. 105 and 113 and
their implications.

"8. It appears to the petitioners, therefore, — who stand to be adversely or

favorably affected both as citizens and as taxpayers, together with the rest
of the Filipino electorates — to be a deception if the Filipino people are
hurried to approve or disapprove the abovestated proposed amendments to
the constitution . . ."cralaw virtua1aw library

The petitioners pray that this Court stop the "respondents from holding the
plebiscite on 27 January 1984 until the matters complained of in the body of
this petition are properly and fairly submitted for the understanding of the
electorate."cralaw virtua1aw library

I vote to grant partial relief to the petitioners.

There is manifest basis for the claim of the petitioners that the citizenry has
not been adequately educated on the proposed amendments on grant of
public lands and urban land reform. At this late date — January 24, 1984 —
I am asked questions about the two proposals and although I try to do the
best I can, I am not too sure about my answers.

The petitioners cite the case of Tolentino v. COMELEC. In that case the
following question was posed for resolution:jgc:chanrobles.com.ph

"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 p. 721.)

This Court answered the question in the negative.

To be sure, the instant case does not fall squarely under the Tolentino
decision but as the petitioners assert, that case can serve as a guide in the
resolution of this case. In the eloquent and ringing words of Mr. Justice
Antonio P. Barredo:jgc:chanrobles.com.ph

"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." (At p. 729.)

The petitioners do not raise any question with respect to Questions 1 and 2
and indeed I can vouch that those questions have been thoroughly discussed
in public and private fora for which reason there is no cause to delay their
submission to the people. Preparations for the plebiscite on January 27,
1984, have reached the point of no return. Questions 1 and 2 can and
should be submitted to the people on plebiscite day but Questions 3 and 4
should be submitted at some other appropriate date.

MELENCIO-HERRERA, J.:

In this case, petitioners have asked that this Court promulgate a judgment
"stopping . . . the plebiscite on 27 January 1984" until the constitutional
amendments proposed in Batasan Resolutions Nos. 105 (Resn. 105) and 113
(Resn. 113) "are properly and fairly submitted for the understanding of the
electorate." I vote for the grant of that plea.

Article XVI of the Constitution provides:jgc:chanrobles.com.ph

"SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the Batasang Pambansa upon a vote of three-fourths of all its
Members, or by a constitutional convention.

(2) The Batasang Pambansa 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.

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."cralaw virtua1aw library

What may be noted in Article XVI is that, besides the provision for the
number of votes necessary for the Batasan’s proposal to amend or revise the
Constitution, or to call a convention or propose to the people the calling of a
convention, the procedure for the revision or amendment of the Constitution
has not been established. Hence, the procedure shall be as the Batasan shall
adopt in the exercise of sound judgment, in the understanding that when it
does so, it acts only as a constituent assembly and not as a legislative body.
If the Batasan, as a constituent assembly, should provide for the revision or
amendment of the Constitution in a manner not consonant with
fundamentals of democracy and of good government, and its action is
challenged, this Court can assume jurisdiction to resolve the
controversy.chanrobles lawlibrary : rednad

What is involved herein are Resn. No. 105 adopted on November 21, 1983,
Resn. No. 113 adopted on December 19, 1983, and BP Bilang 643, enacted
on December 22, 1983.

Resn. 105 has proposed that Sections 11 and 12, Article XIV, of the
Constitution be amended to read as follows:jgc:chanrobles.com.ph

"SEC. 11. The Batasang Pambansa, taking into account conservation,

ecological, and developmental requirements of the natural resources, shall
determine by law the size of lands of the public domain which may be
developed, held or acquired by, or leased to, any qualified individual,
corporation, or association, and the conditions therefor. No private
corporation or association may hold alienable lands of the public domain
except by lease not to exceed one thousand hectares in area; nor may any
citizen hold such lands by lease in excess of five hundred hectares or acquire
by purchase, homestead or grant, in excess of twenty-four hectares. No
private corporation or association may hold by lease, concession; license, or
permit, timber or forest lands and other timber of forest resources in excess
of one hundred thousand hectares; however, such area may be increased by
the Batasang Pambansa upon recommendation of the National Economic and
Development Authority."cralaw virtua1aw library

"SEC. 12. The State shall formulate and implement an agrarian reform
program aimed at emancipating the tenant from the bondage of the soil and
achieving the goals enunciated in this Constitution.

"Such program may include the grant or distribution of alienable and

disposable lands of the public domain to qualified tenants, farmers and other
landless citizens in areas which the President may by or pursuant to law
reserve from time to time, not exceeding the limitations fixed in accordance
with the immediately preceding Section."cralaw virtua1aw library

Resn. 113 has proposed that the following paragraph be added to Section
12, Article XIV, of the Constitution:jgc:chanrobles.com.ph

"The State shall moreover undertake an urban land reform and social
housing program to provide deserving landless, homeless or inadequately
sheltered low income resident citizens reasonable opportunity to acquire
land and decent housing consistent with Section 2 of Article IV of this
Constitution."cralaw virtua1aw library

BP 643, a statute, provides for the holding of the plebiscite on January 27,
1984 for submission to the vote of the citizenry the adoption or rejection of
the amendments proposed in Resn. 105 and Resn. 113.

That Resn. 105 and Resn. 113 have been approved by three-fourth (3/4)
vote of all Batasan members is not in question. Publication, in my opinion, is
a fundamental requirement for those two resolutions, and it has been sought
to be done in BP 643. In the same way that the people are entitled to know
what laws have been approved by the Batasan, through their publication in
the Official Gazette, the same requirement should be followed in respect of
resolutions proposing constitutional amendments.

Coming now to BP 643, a statutory law setting January 27, 1984 for the
plebiscite, where the people can vote on the proposed constitutional
amendments, it should be published in the Official Gazette pursuant to the
provisions of the Civil Code. The Code provides that "laws shall take effect
after fifteen (15) days following the completion of their publication in the
Official Gazette, unless it is otherwise provided." The important factor in the
codal provision is the publication, and the date of effectivity of the law is of
secondary importance. I do not subscribe to the proposition that, when a
statute provides for the date of its effectivity it no longer needs to be
published. The provision should be interpreted such that when a statute
provides for the date of its effectivity, it shall not become effective after
fifteen days of publication but it shall be effective after publication, on the
date provided in the statute itself. As stated in People v. Que Po Lay, 94 Phil.
640, 642, "the general principle and theory that before the public is bound
by its contents, especially its penal provisions, a law, regulation, circular
must first be published and the people officially and especially informed of
said contents and its penalties." There is no "penalty" for an individual in BP
643 but the entire statute, if not publicized, can penalize the great majority
of the people.chanrobles virtual lawlibrary

A reading of the minimum standards set in Gonzalez v. COMELEC, 21 SCRA

774 (1967) will readily show that principles of good government require
that, in a plebiscite for the revision of the Constitution, aside from other
standards set, the ballots should set out in full the proposed constitutional
amendments so that there can be no question that when a citizen had voted
"yes" or "no", he thoroughly knew what he had voted for or against.
Publication is for the general public. Individual notice should also be given to
the voter and this can be done easily through the ballot that he will cast.
Thus, in the case of non-resident defendants, summons is published in a
newspaper of general circulation but it is also required that summons be
served to him individually through registered mail sent to his last known
address. In the ballots to be prepared for the January 27 plebiscite, as
mentioned in BP 643, the citizen is not made aware of the exact
amendments which have been proposed by the Batasan. Said law merely
makes mention of the amendments in substance. For example, anent
Question No. 3, that the "grant" is limited to 24 hectares is not stated.
Question No. 4 is not even indicated. Again, to my mind, there is failure of
effective publication. It is not enough that the citizen is expected, or
required, to read the newspapers and posted copies in public
places.chanrobles virtual lawlibrary

If BP 643 is published in the Official Gazette, and the ballots for the
plebiscite should contain in full the proposed amendments to the
Constitution, the plebiscite can be held on a stated date within 3 months
following the completion of the last publication. The number of days after
completion of the last publication, whether it is ten days, one month, or
three months, will be a question which this Court will have no jurisdiction to
resolve. It is very clear in Article XVI of the Constitution that the plebiscite
shall be held in so many number of days after approval of the amendment
provided they do not exceed 3 months. The number of days is within the
exclusive power of the Batasan to determine.

RELOVA, J.:

Petition for prohibition to restrain respondents Commission on Elections and

Minister of the Budget from holding the plebiscite on 27 January 1984. It is
argued that the proposed amendments: Resolution No. 105 which would
empower the President of the Philippines to grant alienable lands of the
public domain to individuals and landless citizens, and Resolution No. 113
which provides for urban land reform and social housing program, have not
been properly and fairly submitted to the understanding of the Filipino
people. Paragraph 6 of the petition states that —

"These two mentioned proposals bear far-reaching implications, and are

bound to affect existing Constitutional and statutory provisions as well as
Supreme Court holdings on acquisition and/or disposition of public lands and
on property rights particularly in urban areas, that said proposals ought first
to be thoroughly explained to the people before they are made to vote for
their approval or disapproval."cralaw virtua1aw library

Respondents deny the truth of the allegations of the petition with respect to
the issue of proper submission to the electorate and claims "that Resolution
No. 105 was approved on November 21, 1983 and Resolution No. 113 was
approved on December 19, 1983 or 67 and 42 days, respectively, before the
plebiscite scheduled on January 27, 1984. Assuredly, these periods afford
adequate and sufficient time for debate. In fact, the amendments are now
being discussed all over the country, in barangay meetings, in civic
organization discussions, as well as in radio and television. The Integrated
Bar of the Philippines has been airing its views on the amendments." (pp.
23-24, Rollo)
On the questioned proposed amendments, it is safe to say that the people in
the provinces are not, and by Friday (January 27) will not be sufficiently
informed of the meaning, nature and effects thereof. Undersigned takes
judicial notice of the fact that they have not been afforded ample time to
deliberate thereon conscientiously. As stated by this Court in Tolentino v.
Commission on Elections, 41 SCRA 702, 729, "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 case at bar, it is sad to state that proposed
Amendments 3 & 4 have not been fairly laid before the people for their
approval or rejection. In fact, said proposed Amendments have only been
translated into Tagalog and Cebuano. There has been no translation thereof
in the many other dialects in which case it cannot be said that our people
were afforded ample opportunity to understand and deliberate over them.
Mr. Justice Conrado V. Sanchez, in Gonzales v. Commission on Elections, 21
SCRA 774, expressed his view 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. He said:jgc:chanrobles.com.ph

". . . 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 insidiuous 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. .
. ."cralaw virtua1aw library

Undersigned is of the view that in the instant case the people have not been
properly informed of proposed Amendments 3 & 4 to the Constitution and,
accordingly, its submission to them should be postponed. Respondents are
hereby enjoined from submitting them to the people on Friday, January 27,
1984. However, the plebiscite should proceed with respect to proposed
Amendments 1 & 2.chanrobles law library : red

January 24, 1984.

G.R. No. L-1123 March 5, 1947

ALEJO MABANAG, ET AL., petitioners,

vs.
JOSE LOPEZ VITO, ET AL., respondents.

Alejo Mabanag, Jose O. Vera, Jesus G. Barrera, Felixberto Serrano, J. Antonio Araneta, Antonio
Barredo, and Jose W. Diokno for petitioners.
Secretary of Justice Ozaeta, Solicitor General Tañada, and First Assistant Solicitor General Reyes
for respondents.

TUASON, J.:

This is a petition for prohibition to prevent the enforcement of a congressional resolution designated
"Resolution of both houses proposing an amendment to the Constitution of the Philippines to be
appended as an ordinance thereto." The members of the Commission on Elections, the Treasurer of
the Philippines, the Auditor General, and the Director of the Bureau of Printing are made defendants,
and the petitioners are eight senators, seventeen representatives, and the presidents of the
Democratic Alliance, the Popular Front and the Philippine Youth Party. The validity of the above-
mentioned resolution is attacked as contrary to the Constitution.

The case was heard on the pleadings and stipulation of facts. In our view of the case it is
unnecessary to go into the facts at length. We will mention only the facts essential for the proper
understanding of the issues. For this purpose it suffices to say that three of the plaintiff senators and
eight of the plaintiff representatives had been proclaimed by a majority vote of the Commission on
Elections as having been elected senators and representatives in the elections held on April 23,
1946. The three senators were suspended by the Senate shortly after the opening of the first
session of Congress following the elections, on account of alleged irregularities in their election. The
eight representatives since their election had not been allowed to sit in the lower House, except to
take part in the election of the Speaker, for the same reason, although they had not been formally
suspended. A resolution for their suspension had been introduced in the House of Representatives,
but that resolution had not been acted upon definitely by the House when the present petition was
filed.

As a consequence these three senators and eight representatives did not take part in the passage of
the questioned resolution, nor was their membership reckoned within the computation of the
necessary three-fourths vote which is required in proposing an amendment to the Constitution. If
these members of Congress had been counted, the affirmative votes in favor of the proposed
amendment would have been short of the necessary three-fourths vote in either branch of Congress.

At the threshold we are met with the question of the jurisdiction of this Court. The respondents deny
that this Court has jurisdiction, relying on the conclusiveness on the courts of an enrolled bill or
resolution. There is some merit in the petitioners' contention that this is confusing jurisdiction, which
is a matter of substantive law, with conclusiveness of an enactment or resolution, which is a matter
of evidence and practice. This objection, however, is purely academic. Whatever distinction there is
in the juridical sense between the two concepts, in practice and in their operation they boil down to
the same thing. Basically the two notions are synonymous in that both are founded on the regard
which the judiciary accords a co-equal coordinate, and independent departments of the Government.
If a political question conclusively binds the judges out of respect to the political departments, a duly
certified law or resolution also binds the judges under the "enrolled bill rule" born of that respect.
It is a doctrine too well established to need citation of authorities, that political questions are not
within the province of the judiciary, except to the extent that power to deal with such questions has
been conferred upon the courts by express constitutional or statutory provision. (16 C.J.S., 431.)
This doctrine is predicated on the principle of the separation of powers, a principle also too well
known to require elucidation or citation of authorities. The difficulty lies in determining what matters
fall within the meaning of political question. The term is not susceptible of exact definition, and
precedents and authorities are not always in full harmony as to the scope of the restrictions, on this
ground, on the courts to meddle with the actions of the political departments of the government.

But there is one case approaching this in its circumstances: Coleman vs. Miller, a relatively recent
decision of the United States Supreme Court reported and annotated in 122 A.L.R., 695. The case,
by a majority decision delivered by Mr. Chief Justice Hughes, is authority for the conclusion that the
efficacy of ratification by state legislature of a proposed amendment to the Federal Constitution is a
political question and hence not justiciable. The Court further held that the decision by Congress, in
its control of the Secretary of State, of the questions of whether an amendment has been adopted
within a reasonable time from the date of submission to the state legislature, is not subject to review
by the court.

If ratification of an amendment is a political question, a proposal which leads to ratification has to be

a political question. The two steps complement each other in a scheme intended to achieve a single
objective. It is to be noted that the amendatory process as provided in section 1 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. 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. As the Mississippi
Supreme Court has once said:

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.
(Green vs. Weller, 32 Miss., 650; note, 10 L.R.A., N.S., 150.)

Mr. Justice Black, in a concurring opinion joined in by Justices Roberts, Frankfurter and Douglas, in
Miller vs.Coleman, supra, finds no basis for discriminating between proposal and ratification. From
his forceful opinion we quote the following paragraphs:

The Constitution grant Congress exclusive power to control submission of constitutional

amendments. Final determination by Congress that ratification by three-fourths of the States
has taken place "is conclusive upon the courts." In the exercise of that power, Congress, of
course, is governed by the Constitution. However, whether submission, intervening
procedure or Congressional determination of ratification conforms to the commands of the
Constitution, call for decisions by a "political department" of questions of a type which this
 Court has frequently designated "political." And decision of a "political question" by the
"political department" to which the Constitution has committed it "conclusively binds the
judges, as well as all other officers, citizens and subjects of . . . government." Proclamation
under authority of Congress that an amendment has been ratified will carry with it a solemn
assurance by the Congress that ratification has taken place as the Constitution commands.
Upon this assurance a proclaimed amendment must be accepted as a part of the
Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent
that the Court's opinion in the present case even impliedly assumes a power to make judicial
interpretation of the exclusive constitutional authority of Congress over submission and
ratification of amendments, we are unable to agree.

The State court below assumed jurisdiction to determine whether the proper procedure is
being followed between submission and final adoption. However, it is apparent that judicial
review of or pronouncements upon a supposed limitation of a "reasonable time" within which
Congress may accept ratification; as to whether duly authorized State officials have
proceeded properly in ratifying or voting for ratification; or whether a State may reverse its
action once taken upon a proposed amendment; and kindred questions, are all consistent
only with an intimate control over the amending process in the courts. And this must
inevitably embarrass the course of amendment by subjecting to judicial interference matters
that we believe were intrusted by the Constitution solely to the political branch of
government.

The Court here treats the amending process of the Constitution in some respects as subject
to judicial construction, in others as subject to the final authority of the Congress. There is no
disapproval of the conclusion arrived at in Dillon vs. Gloss, that the Constitution impliedly
requires that a properly submitted amendment must die unless ratified within a "reasonable
time." Nor does the Court now disapprove its prior assumption of power to make such a
pronouncement. And it is not made clear that only Congress has constitutional power to
determine if there is any such implication in Article 5 of the Constitution. On the other hand,
the Court's opinion declares that Congress has the exclusive power to decide the "political
questions" of whether as State whose legislature has once acted upon a proposed
amendment may subsequently reverse its position, and whether, in the circumstances of
such a case as this, an amendment is dead because an "unreasonable" time has elapsed.
No such division between the political and judicial branches of the government is made by
Article 5 which grants power over the amending of the Constitution to Congress alone.
Undivided control of that process has been given by the Article exclusively and completely to
Congress. The process itself is "political" in its entirely, from submission until an amendment
becomes part of the Constitution, and is not subject to judicial guidance, control or
interference at any point.

Mr. Justice Frankfurter, in another concurring opinion to which the other three justices subscribed,
arrives at the same conclusion. Though his thesis was the petitioner's lack of standing in court — a
point which not having been raised by the parties herein we will not decide — his reasoning
inevitably extends to a consideration of the nature of the legislative proceeding the legality of which
the petitioners in that case assailed. From a different angle he sees the matter as political, saying:

The right of the Kansas senators to be here is rested on recognition by Leser vs. Garnett,
258 U.S., 130; 66 Law. ed., 505; 42 S. Ct., 217, of a voter's right to protect his franchise. The
historic source of this doctrine and the reasons for it were explained in Nixon vs. Herndon,
273 U.S., 436, 540; 71 Law. ed., 759, 761; 47 S. Ct., 446. That was an action for $5,000
damages against the Judges of Elections for refusing to permit the plaintiff to vote at a
primary election in Texas. In disposing of the objection that the plaintiff had no cause of
action because the subject matter of the suit was political, Mr. Justice Homes thus spoke for
 the Court: "Of course the petition concerns political action, but it alleges and seeks to
recover for private damage. That private damage may be caused by such political action and
may be recovered for in a suit at law hardly has been doubted for over two hundred years,
since Ashby vs. White, 2 Ld. Raym., 938; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas., 521; 3 Ld.
Raym., 320; 92 Eng. Reprint, 710, and has been recognized by this Court." "Private
damage" is the clue to the famous ruling in Ashby vs. White, supra, and determines its scope
as well as that of cases in this Court of which it is the justification. The judgment of Lord Holt
is permeated with the conception that a voter's franchise is a personal right, assessable in
money damages, of which the exact amount "is peculiarly appropriate for the determination
of a jury," see Wiley vs. Sinkler, 179 U.S., 58, 65; 45 Law. ed., 84, 88; 21 S. Ct., 17, and for
which there is no remedy outside the law courts. "Although this matter relates to the
parliament," said Lord Holt, "yet it is an injury precedaneous to the parliament, as my Lord
Hale said in the case of Bernardiston vs. Some, 2 Lev., 114, 116; 83 Eng. Reprint, 175. The
parliament cannot judge of this injury, nor give damage to the plaintiff for it: they cannot
make him a recompense." (2 Ld. Raym., 938, 958; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas.,
521.)

The reasoning of Ashby vs. White and the practice which has followed it leave intra-
parliamentary controversies to parliaments and outside the scrutiny of law courts. The
procedures for voting in legislative assemblies — who are members, how and when they
should vote, what is the requisite number of votes for different phases of legislative activity,
what votes were cast and how they were counted — surely are matters that not merely
concern political action but are of the very essence of political action, if "political" has any
connotation at all. Marshall Field & Co. vs. Clark, 143 U.S., 649, 670, et seq.; 36 Law. ed.,
294, 302; 12 S. Ct., 495; Leser vs. Garnett, 258 U.S., 130, 137; 66 Law. ed., 505, 511; 42 S.
Ct., 217. In no sense are they matters of "private damage." They pertain to legislators not as
individuals but as political representatives executing the legislative process. To open the law
courts to such controversies is to have courts sit in judgment on the manifold disputes
engendered by procedures for voting in legislative assemblies. If the doctrine of
Ashby vs. White vindicating the private rights of a voting citizen has not been doubted for
over two hundred years, it is equally significant that for over two hundred years
Ashby vs. White has not been sought to be put to purposes like the present. In seeking
redress here these Kansas senators have wholly misconceived the functions of this Court.
The writ of certiorari to the Kansas Supreme Court should therefore be dismissed.

We share the foregoing views. In our judgment they accord with sound principles of political
jurisprudence and represent liberal and advanced thought on the working of constitutional and
popular government as conceived in the fundamental law. Taken as persuasive authorities, they
offer enlightening understanding of the spirit of the United States institutions after which ours are
patterned.

But these concurring opinions have more than persuasive value. As will be presently shown, they
are the opinions which should operate to adjudicate the questions raised by the pleadings. To make
the point clear, it is necessary, at the risk of unduly lengthening this decision, to make a statement
and an analysis of the Coleman vs. Miller case. Fortunately, the annotation on that case in the
American Law Reports, supra, comes to out aid and lightens our labor in this phase of the
controversy.

Coleman vs. Miller was an original proceeding in mandamus brought in the Supreme Court of
Kansas by twenty-one members of the Senate, including twenty senators who had voted against a
resolution ratifying the Child Labor Amendment, and by three members of the House of
Representatives, to compel the Secretary of the Senate to erase in indorsement on the resolution to
the effect that it had been adopted by the Senate and to indorse thereon the words "as not passed."
They sought to restrain the offices of the Senate and House of Representatives from signing the
resolution, and the Secretary of State of Kansas from authenticating it and delivering it to the
Governor.

The background of the petition appears to have been that the Child Labor Amendment was
proposed by Congress in June, 1924; that in January, 1925, the legislature of Kansad adopted a
resolution rejecting it and a copy of the resolution was sent to the Secretary of State of the United
States; that in January, 1927, a new resolution was introduced in the Senate of Kansas ratifying the
proposed amendment; that there were forty senators, twenty of whom voted for and twenty against
the resolution; and that as a result of the tie, the Lieutenant Governor cast his vote in favor of the
resolution.

The power of the Lieutenant Governor to vote was challenged, and the petition set forth prior
rejection of the proposed amendment and alleged that in the period from June 1924 to March 1927,
the proposed amendment had been rejected by both houses of the legislatures of twenty-six states
and had been ratified only in five states, and that by reason of that rejection and the failure of
ratification within a reasonable time, the proposed amendment had lost its vitality.

The Supreme Court of Kansas entertained jurisdiction of all the issues but dismissed the petition on
the merits. When the case reached the Supreme Court of the United States the questions were
framed substantially in the following manner:

First, whether the court had jurisdiction; that is, whether the petitioners had standing to seek to have
the judgment of the state court reversed; second, whether the Lieutenant Governor had the right to
vote in case of a tie, as he did, it being the contention of the petitioners that "in the light of the
powers and duties of the Lieutenant Governor and his relation to the Senate under the state
Constitution, as construed by the Supreme Court of the state, the Lieutenant Governor was not a
part of the 'legislature' so that under Article 5 of the Federal Constitution, he could be permitted to
have a deciding vote on the ratification of the proposed amendment, when the Senate was equally
divided"; and third, the effect of the previous rejection of the amendment and of the lapse of time
after its submission.

The first question was decided in the affirmative. The second question, regarding the authority of the
Lieutenant Governor to vote, the court avoided, stating: "Whether this contention presents a
justiciable controversy, or a question which is political in its nature and hence not justiciable, is a
question upon which the Court is equally divided and therefore the court expresses no opinion upon
that point." On the third question, the Court reached the conclusion before referred to, namely, (1)
that the efficacy of ratification by state legislature of a proposed amendment to the Federal
Constitution is a political question, within the ultimate power of Congress in the exercise of its control
and of the promulgation of the adoption of amendment, and (2) that the decision by Congress, in its
control of the action of the Secretary of State, of the questions whether an amendment to the
Federal Constitution has been adopted within a reasonable time, is not subject to review by the
court.

The net result was that the judgment of the Supreme Court of Kansas was affirmed but in the
grounds stated in the United States Supreme Court's decision. The nine justices were aligned in
three groups. Justices Roberts, Black, Frankfurter and Douglas opined that the petitioners had no
personality to bring the petition and that all the questions raised are political and non-justiciable
Justices Butler and McReynolds opined that all the questions were justiciable; that the Court had
jurisdiction of all such questions, and that the petition should have been granted and the decision of
the Supreme Court of Kansas reversed on the ground that the proposal to amend had died of old
age. The Chief Justice, Mr. Justice Stone and Mr. Justice Reed regarded some of the issues as
political and non-justiciable, passed by the question of the authority of the Lieutenant Governor to
case a deciding vote, on the ground that the Court was equally divided, and took jurisdiction of the
rest of the questions.

The sole common ground between Mr. Justice Butler and Mr. Justice McReynolds, on the one hand
and the Chief Justice, Mr. Justice Stone and Mr. Justice Reed, on the other, was on the question of
jurisdiction; on the result to be reached, these two groups were divided. The agreement between
Justices Roberts, Black, Frankfurter and Douglas, on the one hand, and the Chief Justice and
Justices Stone and Reed, on the other, was on the result and on that part of the decision which
declares certain questions political and non-justiciable.

As the annotator in American Law Reports observes, therefore going four opinions "show
interestingly divergent but confusing positions of the Justices on the issues discussed. "It cites an
article in 48 Yale Law Journal, 1455, amusingly entitled "Sawing a Justice in Half," which, in the light
of the divergencies in the opinions rendered, aptly queries" whether the proper procedure for the
Supreme Court would not have been to reverse the judgment below and direct dismissal of the suit
for want of jurisdiction." It says that these divergencies and line-ups of the justices "leave power to
dictate the result and the grounds upon which the decision should be rested with the four justices
who concurred in Mr. Justice Black's opinion." Referring to the failure of the Court to decide the
question of the right of the Lieutenant Governor to vote, the article points out that from the opinions
rendered the "equally divided" court would seem under any circumstances to bean equal division of
an odd number of justices, and asks "What really did happen? Did a justice refuse to vote on this
issue? And if he did, was it because he could not make up his mind, or is it possible to saw a justice
vertically in half during the conference and have him walk away whole?" But speaking in a more
serious vein, the commentator says that decision of the issue could not be avoided on grounds of
irrelevance, since if the court had jurisdiction of the case, decision of the issue in favor of the
petitioners would have required reversal of the judgment below regardless of the disposal of the
other issues.

From this analysis the conclusion is that the concurring opinions should be considered as laying
down the rule of the case.

The respondent's other chief reliance is on the contention that a duly authenticated bill or resolution
imports absolute verity and is binding on the courts. This is the rule prevailing in England. In the
United States, "In point of numbers, the jurisdictions are divided almost equally pro and con the
general principle (of these, two or three have changed from their original position), two or three
adopted a special variety of view (as in Illinois), three or four are not clear, and one or two have not
yet made their decisions." (IV Wigmore on Evidence, 3d Edition, 685, footnote.) It is important to
bear in mind, in this connection, that the United States Supreme Court is on the side of those which
favor the rule. (Harwood vs. Wentworth, 40 Law. ed., 1069; Lyon vs. Wood, 38 Law. ed., 854;
Field vs. Clark, 36 Law. ed., 294.)

If for no other reason than that it conforms to the expressed policy of our law making body, we
choose to follow the rule. Section 313 of the old Code of Civil Procedure, as amended by Act No.
2210, provides: "Official documents may be proved as follows: . . . (2) the proceedings of the
Philippine Commission, or of any legislative body that may be provided for in the Philippine Islands,
or of Congress, by the journals of those bodies or of either house thereof, or by published statutes or
resolutions, or by copies certified by the clerk or secretary, or printed by their order; Provided, That
in the case of Acts of the Philippine Commission or the Philippine Legislature, when there is an
existence of a copy signed by the presiding officers and secretaries of said bodies, it shall be
conclusive proof of the provisions of such Acts and of the due enactment thereof."
But there is more than statutory sanction for conclusiveness.

This topic has been the subject of a great number of decisions and commentaries written with
evident vehemence. Arguments for and against the rule have been extensive and exhaustive. It
would be presumptuous on our part to pretend to add more, even if we could, to what has already
been said. Which such vast mass of cases to guide our judgment and discretion, our labor is
reduced to an intelligent selection and borrowing of materials and arguments under the criterion of
adaptability to a sound public policy.

The reasons adduced in support of enrollment as contrasted with those which opposed it are, in our
opinion, almost decisive. Some of these reasons are summarized in 50 American Jurisprudence,
section 150 as follows:

SEC. 150. Reasons for Conclusiveness. — It has been declared that the rule against going
behind the enrolled bill is required by the respect due to a coequal and independent
department of the government, and it would be an inquisition into the conduct of the
members of the legislature, a very delicate power, the frequent exercise of which must lead
to endless confusion in the administration of the law. The rule is also one of convenience,
because courts could not rely on the published session laws, but would be required to look
beyond these to the journals of the legislature and often to any printed bills and amendments
which might be found after the adjournment of the legislature. Otherwise, after relying on the
prima facie evidence of the enrolled bills, authenticated as exacted by the Constitution, for
years, it might be ascertained from the journals that an act theretofore enforced had never
become a law. In this respect, it has been declared that these is quite enough uncertainty as
to what the law is without saying that no one may be certain that an act of the legislature has
become such until the issue has been determined by some court whose decision might not
be regarded as conclusive in an action between the parties.

From other decisions, selected and quoted in IV Wigmore on Evidence, 696, 697, we extract these
passages:

I think the rule thus adopted accords with public policy. Indeed, in my estimation, few things
would be more mischievous than the introduction of the opposite rule. . . . The rule
contended for is that the Court should look at the journals of the Legislature to ascertain
whether the copy of the act attested and filed with the Secretary of State conforms in its
contents with the statements of such journals. This proposition means, if it has any legal
value whatever, that, in the event of a material discrepancy between the journal and the
enrolled copy, the former is to be taken as the standard of veracity and the act is to be
rejected. This is the test which is to be applied not only to the statutes now before the Court,
but to all statutes; not only to laws which have been recently passed, but to laws the most
ancient. To my mind, nothing can be more certain than that the acceptance of this doctrine
by the Court would unsettle the entire statute law of the State. We have before us some
evidence of the little reliability of these legislative journals. . . . Can any one deny that if the
laws of the State are to be tested by a comparison with these journals, so imperfect, so
unauthenticated, the stability of all written law will be shaken to its very foundations? . . . We
are to remember the danger, under the prevalence of such a doctrine, to be apprehended
from the intentional corruption of evidences of this character. It is scarcely too much to say
that the legal existence of almost every legislative act would be at the mercy of all persons
having access to these journals. . . . ([1866], Beasley, C.J., in Pangborn vs. Young, 32
N.J.L., 29, 34.)
 But it is argued that if the authenticated roll is conclusive upon the Courts, then less than a
quorum of each House may be the aid of corrupt presiding officers imposed laws upon the
State in defiance of the inhibition of the Constitution. It must be admitted that the
consequence stated would be possible. Public authority and political power must of necessity
be confided to officers, who being human may violate the trusts reposed in them. This
perhaps cannot be avoided absolutely. But it applies also to all human agencies. It is not fit
that the Judiciary should claim for itself a purity beyond all others; nor has it been able at all
times with truth to say that its high places have not been disgraced. The framers of our
government have not constituted it with faculties to supervise coordinate departments and
correct or prevent abuses of their authority. It cannot authenticate a statute; that power does
not belong to it; nor can it keep a legislative journal. (1869, Frazer, J., in Evans vs. Brownem
30 Ind., 514, 524.)

Professor Wigmore in his work on Evidence — considered a classic, and described by one who
himself is a noted jurist, author, and scholar, as "a permanent contribution to American law" and
having "put the matured nineteenth-century law in form to be used in a new era of growth" —
unequivocally identifies himself with those who believe in the soundness of the rule. The
distinguished professor, in answer to the argument of Constitutional necessity, i.e., the impossibility
of securing in any other way the enforcement of constitutional restrictions on legislative action, says:

(1) In the first place, note that it is impossible of consistent application. If, as it is urged, the
Judiciary are bound to enforce the constitutional requirements of three readings, a two-thirds
vote, and the like, and if therefore an act must be declared no law which in fact was not read
three times or voted upon by two-thirds, this duty is a duty to determine according to the
actual facts of the readings and the votes. Now the journals may not represent the actual
facts. That duty cannot allow us to stop with the journals, if it can be shown beyond doubt
that the facts were otherwise than therein represented. The duty to uphold a law which in fact
was constitutionally voted upon is quite as strong as the duty to repudiate an act
unconstitutionally voted upon. The Court will be going as far wrong in repudiating an act
based on proper votes falsified in the journal as it will be in upholding an act based on
improper votes falsified in the enrollment. This supposed duty, in short, is to see that the
constitutional facts did exist; and it cannot stop short with the journals. Yet, singularly
enough, it is unanimously conceded that an examination into facts as provable by the
testimony of members present is not allowable. If to support that it be said that such an
inquiry would be too uncertain and impracticable, then it is answered that this concedes the
supposed constitutional duty not to be inexorable, after all; for if the duty to get at the facts is
a real and inevitable one, it must be a duty to get at them at any cost; and if it is merely a
duty that is limited by policy and practical convenience, then the argument changes into the
second one above, namely, how far it is feasible to push the inquiry with regard to policy and
practical convenience; and from this point of view there can be but one answer.

(2) In the second place, the fact that the scruple of constitutional duty is treated thus
inconsistently and pushed only up to a certain point suggests that it perhaps is based on
some fallacious assumption whose defect is exposed only by carrying it to its logical
consequences. Such indeed seems to be the case. It rests on the fallacious motion that
every constitutional provision is "per se" capable of being enforced through the Judiciary and
must be safeguarded by the Judiciary because it can be in no other way. Yet there is
certainly a large field of constitutional provision which does not come before the Judiciary for
enforcement, and may remain unenforced without any possibility or judicial remedy. It is not
necessary to invoke in illustration such provisions as a clause requiring the Governor to
appoint a certain officer, or the Legislature to pass a law for a certain purpose; here the
Constitution may remain unexecuted by the failure of Governor or Legislature to act, and yet
the Judiciary cannot safeguard and enforce the constitutional duty. A clearer illustration may
 be had by imagining the Constitution to require the Executive to appoint an officer or to call
out the militia whenever to the best of his belief a certain state of facts exists; suppose he
appoints or calls out when in truth he has no such belief; can the Judiciary attempt to enforce
the Constitution by inquiring into his belief? Or suppose the Constitution to enjoin on the
Legislators to pass a law upon a certain subject whenever in their belief certain conditions
exist; can the Judiciary declare the law void by inquiring and ascertaining that the
Legislature, or its majority, did not have such a belief? Or suppose the Constitution
commands the Judiciary to decide a case only after consulting a soothsayer, and in a given
case the Judiciary do not consult one; what is to be done?

These instances illustrate a general situation in which the judicial function of applying and
enforcing the Constitution ceases to operate. That situation exists where the Constitution
enjoins duties which affect the motives and judgment of a particular independent department
of government, — Legislature, Executive, and Judiciary. Such duties are simply beyond
enforcement by any other department if the one charged fails to perform them. The
Constitution may provide that no legislator shall take a bribe, but an act would not be treated
as void because the majority had been bribed. So far as the Constitution attempts to lay
injunctions in matters leading up to and motivating the action of a department, injunctions
must be left to the conscience of that department to obey or disobey. Now the act of the
Legislature as a whole is for this purpose of the same nature as the vote of a single
legislator. The Constitution may expressly enjoin each legislator not to vote until he has
carefully thought over the matter of legislation; so, too, it may expressly enjoin the whole
Legislature not to act finally until it has three times heard the proposition read aloud. It is for
the Legislature alone, in the latter case as well as in the former, to take notice of this
injunction; and it is no more the function of the Judiciary in the one case than in the other to
try to keep the Legislature to its duty:

xxx xxx xxx

The truth is that many have been carried away with the righteous desire to check at any cost
the misdoings of Legislatures. They have set such store by the Judiciary for this purpose that
they have almost made them a second and higher Legislature. But they aim in the wrong
direction. Instead of trusting a faithful Judiciary to check an inefficient Legislature, they
should turn to improve the legislature. The sensible solution is not to patch and mend casual
errors by asking the Judiciary to violate legal principle and to do impossibilities with the
Constitution; but to represent ourselves with competent, careful, and honest legislators, the
work of whose hands on the statute-roll may come to reflect credit upon the name of popular
government. (4 Wigmore on Evidence, 699-702.)

The petitioners contend that the enrolled bill rule has not found acceptance in this jurisdiction, citing
the case of United States vs. Pons (34 Phil., 729). It is argued that this Court examined the journal in
that case to find out whether or not the contention of the appellant was right. We think the petitioners
are in error.

It will be seen upon examination of section 313 of the Code of Civil Procedure, as amended by Act
No. 2210, that, roughly, it provides two methods of proving legislative proceedings: (1) by the
journals, or by published statutes or resolutions, or by copies certified by the clerk or secretary or
printed by their order; and (2) in case of acts of the Legislature, by a copy signed by the presiding
officers and secretaries thereof, which shall be conclusive proof of the provisions of such Acts and of
the due enactment thereof.
The Court looked into the journals in United States vs. Pons because, in all probability, those were
the documents offered in evidence. It does not appear that a duly authenticated copy of the Act was
in existence or was placed before the Court; and it has not been shown that if that had been done,
this Court would not have held the copyconclusive proof of the due enactment of the law. It is to be
remembered that the Court expressly stated that it "passed over the question" of whether the
enrolled bill was conclusive as to its contents and the mode of its passage.

Even if both the journals and an authenticated copy of the Act had been presented, the disposal of
the issue by the Court on the basis of the journals does not imply rejection of the enrollment theory,
for, as already stated, the due enactment of a law may be proved in either of the two ways specified
in section 313 of Act No. 190 as amended. This Court found in the journals no signs of irregularity in
the passage of the law and did not bother itself with considering the effects of an authenticated copy
if one had been introduced. It did not do what the opponents of the rule of conclusiveness advocate,
namely, look into the journals behind the enrolled copy in order to determine the correctness of the
latter, and rule such copy out if the two, the journals and the copy, be found in conflict with each
other. No discrepancy appears to have been noted between the two documents and the court did
not say or so much as give to understand that if discrepancy existed it would give greater weight to
the journals, disregarding the explicit provision that duly certified copies "shall be conclusive proof of
the provisions of such Acts and of the due enactment thereof."

In view of the foregoing consideration, we deem it unnecessary to decide the question of whether
the senators and representatives who were ignored in the computation of the necessary three-
fourths vote were members of Congress within the meaning of section 1 of Article XV of the
Philippine Constitution.

The petition is dismissed without costs.

Moran, C.J., Pablo, and Hontiveros, JJ., concur.

Separate Opinions

BENGZON, J., with whom concurs PADILLA, J., concurring:

Although I maintain that we have jurisdiction as petitioners contend, I can't vote for them, because
the enrolled copy of the resolution and the legislative journals are conclusive upon us.

A. The overwhelming majority of the state courts are of the opinion that the question whether an
amendment to the existing constitution has been duly proposed in the manner required by such
constitution properly belongs to the judiciary. That is the position taken by Alabama, Arkansas,
California, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Jersey, Ohio, Oregon, Rhode Island, Washington and Wisconsin. (See 12 C. J., 880 and 16C.J.S.,
437.) (See also 11 Am. Jur., 639.) Only North Dakota and Oklahoma have adopted a different view.
(16 C.J.S., 437, notes 41 and 43.)
 "The authorities are thus practically uniform in holding that whether a constitutional
amendment has been properly adopted according to the requirements of an existing
constitution is a judicial question." (McConaughy vs. Secretary of State, 106 Minn., 392, 409;
119 N.W., 408.) (12 C.J., 880.)

"An examination of the decisions shows that the courts have almost uniformly exercised the
authority to determine the validity of the proposal, submission, or ratification of constitutional
amendments. It has been judicially determined whether a proposed amendment received the
constitutional majority of votes. (Knight vs.Shelton, 134 Fed., 423; Rice vs. Palmer, 78 Ark.,
432; 96 S. W. 396; Green vs. State Canvassers, 5 Ida., 130; 47 P., 259; 95 Am. S.R., 169; In
re Denny, 156 Ind., 104; 59 N.E., 359; 51 L. R. A., 722; Dayton vs. St. Paul, 22 Minn., 400;
Tecumseh Nat. Bank vs. Saunders, 51 Nebr., 801; 71 N.W., 779; Bott vs. Wurts, 63 N.J.L.,
289; 43 A., 744, 881; 45 L.R.A., 251; State vs. Foraker, 46 Oh. St., 677; 23 N.E., 491; 6
L.R.A., 422.)" (12 C.J., 880.)

As our constitutional system ("limitation" of powers) is more analogous to state systems than to the
Federal theory of "grant" of powers, it is proper to assume that the members of our Constitutional
convention, composed mostly of lawyers, and even the members of the American Congress that
approved the Tydings-McDuffie enabling legislation, contemplated the adoption of such
constitutional practice in this portion of the world. Hence, my conclusion that in Philippine polity,
courts may and should take cognizance of the subject of this controversy.

B. The petitioners' grievance is that, contrary to the provisions of the Constitution (Article XV), the
proposed amendment was not approved "by a vote of three-fourths of all the members of the Senate
and of the House of Representatives." They complain that certain Senators and some members of
the House of Representatives were not allowed to participate and were not considered in
determining the required three fourths vote.

The respondents, besides denying our power to revised the counting, assert that the persons
mentioned, for all practical purposed did not belong to the Congress of the Philippines on the day the
amendment was debated and approved.

Central target of attack is Republic Act No. 73 "to submit to the Filipino people, for approval or
disapproval, the amendment to the Constitution of the Philippines to be appended as an Ordinance
thereto, proposed by the Congress of the Philippines in a Resolution of both Houses, etc."

Petitioners would have a declaration of invalidity of that piece of legislation. Its first section provides
that "the amendment to the Constitution of the Philippines to be appended as an Ordinance thereto,
proposed by the Congress of the Philippines in a Resolution of both Houses, adopted on September
eighteen, nineteen hundred and forty-six, shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March eleven, nineteen hundred and forty-
seven, in accordance with the provisions of this Act."

By this provision, the Legislative Department with the concurrence of the Executive, declares in the
most solemn manner that the resolution proposing the amendment was duly carried. Therefore, it
would be pertinent to inquire whether those petitioners who are members of the Congress that
approved Republic Act No. 73 are not precluded from questioning its validity or veracity, unless they
assert and prove that in Congress they opposed its enactment. In default of a contrary showing, it is
not reasonable to suppose that as members of Congress they endorsed-- or at least are bound by —
the declarations of Republic Act No. 73? And if a private party is estopped from challenging the
constitutional efficacy of a law whose enactment he has procured (see 16 C.J.S., 198 and 11 Am.
Jur., 767) should not a member of Congress be estopped from impugning a statute he helped
(presumably) to pass? Parenthetically it should be added that the remaining petitioners, as mere
citizens, would probably have no suable claim. (Cf. 16 C.J.S., 169.)

C. But perhaps these points should be left to future study and decision, because the instant litigation
may be solved by the application of other well-established principles founded mainly on the
traditional respect which one department of the Government entertains for the actions of the others.

On account of the separation of powers, which I firmly believe, I agree to the applicability and
binding effect of section 313 of Act No. 190, as amended by Act No. 2210, which, in my opinion, has
not been abrogated by the Rules of Court. I likewise believe the soundness of the doctrine
expounded by the authoritative Wigmore on a question admittedly within the domain of the law on
evidence: conclusiveness of the enrolled bill of resolution upon the judicial authorities.

D. Withal, should that principle of conclusiveness be denied, the respondents could plausibly fall
back on the time-honored rule that the courts may not go behind the legislative journals to contradict
their veracity. (United States vs.Pons, 34 Phil., 729.)

According to the minutes of the joint session Exhibit 3, in the Senate sixteenth (16) senators
approved the resolution against five (5), with no absences; whereas in the house sixty-eight (68)
congressmen voted "yes", eighteen(18) voted "no", one abstained from voting and one was absent.
Therefore, 16 being three-fourths of the total membership of twenty-one of the Senate (16 plus 5),
and 68 being more than three-fourths of the total membership of eighty-eight (88) of the House of
Representatives (68 plus 18 plus 1 plus 1), it is crystal clear that the measure was upheld by the
number of votes prescribed by the Constitution.

True, there are in the said exhibit statements by two Senators and one congressman to the effect
that the votes did not constitute the majority required by the Constitution. However, in the fact of the
incontestable arithmetical computation above shown, those protests must be attributed to their
erroneous counting of votes; none of them having then asserted that "there were absent Senators or
Congressmen who had not been taken into account. "Ford although we might have judicial notice of
the number of proclaimed members of Congress, still we are no better qualified than the Legislature
to determine the number of its actual membership at any given moment, what with demises or
demissions, remotions or suspensions.

HILADO, J., concurring and dissenting:

I concur in the result of the majority opinion as well as in the grounds supporting the same in so far
as they are not inconsistent with the applicable reasons supporting my concurring opinion in Vera vs.
Avelino (77 Phil., 192). But I dissent from that part of the majority opinion (page 3, ante) wherein it is
stated that if the suspended members of the Senate and House of Representatives had been
counted "the affirmative votes in favor of the proposed amendment would have been short of the
necessary three-fourths of vote in either branch of Congress."

The basic theories underlying my aforesaid concurring opinion in Vera vs. Avelino, supra, are, first,
that the questions therein raised were political in nature within the exclusive province of the
legislature, and, second, that the judiciary does not possess jurisdiction over such questions. It is to
me evidence that the questions involved in the present proceeding are no less political than those
involved in that former Senate case. It is deemed unnecessary to dwell at more length upon the
grounds of my said concurring opinion.
The ground for my dissent from the above-quoted statement of the majority opinion in the instant
proceeding is that the suspension of the said members of the Senate and the House of
Representatives being a political question, the judiciary, being without jurisdiction to interfere with
the determination thereof by the proper political department of the government, has perforce to abide
by said determination if it were to go any further in the consideration of the case. In other words, any
further discussion of the case in this Court will have to start from the premise that said members
have been suspended by the respective Houses of Congress and that we, being powerless to
interfere with the matter of said suspension, must consider ourselves bound by the determination of
said political branches of the government. As said by the Supreme Court of the United States in
Philipps vs. Payne (2 Otto. [U.S.], 130; 23 Law. ed., 649), "in cases involving the action of the
political departments of the government, the judiciary is bound by such action."
(Williams vs. Insurance Co., 13 Pet., 420; Garcia vs. Lee, 12 Pet., 511; Kennel vs. Chambers, 14
How., 38; Foster vs. Neilson, 2 Pet., 209; Nabob of Carnatio vs. East Ind. Co., Ves., Jr., 60;
Lucer vs. Barbon, 7 How., 1; R.I. vs. Mass., 12 Pet., 714.)

If, then, we are to proceed, as I think we should, upon the premise that said members have been
thus suspended, there will be to my mind, absolutely no justification, ground nor reason for counting
them in the determination of whether or not the required three-fourths vote was attained. Their case
was entirely different from that of members who, not having been suspended nor otherwise
disqualified, had the right to vote upon the resolution. In the case of the latter, they had, like all other
members similarly situated, three alternatives, namely, to vote in favor of the resolution, to vote
against it, or to abstain from voting. If they voted in favor, of course, their votes had to be counted
amount those supporting the resolution. If they voted against, of course, their votes had to be
counted with those opposing. And if they abstained from voting, there would be sound justification
for counting them as not in favor of the resolution, because by their very abstention they impliedly
but necessarily would signify that they did not favor the resolution, for it is obvious that if they did,
they would have voted in favor of it. On the other hand, those suspended members who, by reason
of the suspension, whose validity or legality we are devoid of jurisdiction to inquire into, cannot be
similarly treated. In their case there would be no way of determining which way their votes would
have gone or whether or not they would have abstained from voting. In this connection, in
considering the hypothesis of their voting in case they had not been suspended, I must go upon the
assumption that while those suspended members may belong to the political party which, as a party,
was opposed to the resolution, still they would have voted independently and following their
individual convictions. In this connection, it might not be amiss to mention that there were quite a
number of minority members of the legislature who voted for the resolution. Hence, we are not in a
position to say that said suspended members, if they had not been suspended, would have voted
against the resolution, nor in favor of it either, nor that they would have abstained from voting. Why
then should they bed counted with the members who voted against the resolution or those who,
having the right to vote, abstained from doing so? Why should we count them as though
we knew that they would have voted against the resolution, or even that they would have abstained
from voting? Soundly construed, I submit that the Constitution does not, and could not, include
suspended members in the determination of the required three-fourths vote.

I take it, that the drafters in providing in Article XV, section 1, of the Constitution that "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 (emphasis supplied) separately . . .", advisedly used the vital and
all-important word "voting" therein. I take it, that they meant to refer to the
members voting, undoubtedly expecting that all members not suspended or otherwise disqualified,
would cast their votes one way or the other. But I am here even making a concession in favor of the
opponents when I say that those who, with the right to vote, abstain from voting, may be counted
among those not in favor of the measure. But what I cannot bring myself to conceive is that the
quoted provision should have intended to count suspended or disqualified members as opposed to
the measure, or not being in favor of it, without it being possible to know which way they would have
voted or that they would have abstained from voting — that they would never have voted in favor of
the measure. If I should ask why we should not count such suspended or disqualified members
among those in favor of the measure, I am sure those who opine differently would answer, because
we do not know that they would have voted in favor of it. By the same token, if they should ask me
why we should not count them among those against the measure, I would answer that we do not
know that they would have voted against it or that they would have abstained from voting. All this
inevitably leads to the conclusion — the only one possible — that such suspended or disqualified
members should not and cannot be counted due to that very impossibility of knowing which way they
would have voted or whether they would have abstained from voting. I stand for a sound and rational
construction of the constitutional precept.

PARAS, J.:

I fully concur in the foregoing opinion of Mr. Justice Hilado.

PERFECTO, J., dissenting:

To surrender or not to surrender, that is the question.

The last bastion of democracy is in danger.

Those who are manning it are summoned to give up without the least resistance, and the banner of
the Constitution is silently and meekly hauled down from its pole to be offered as a booty to the
haughty standard bearers of a new brand of Farcism. In t he words of Cicero, "recedere de statu
suae dignitatis."

Cardinal moral bearings have been lost in the psychological chaos suffered by those, throwing
overboard all ideals as burdensome and dangerous ballast, in desperate efforts to attain at all costs
individual survival, even in ignominy, could not stand the impact of initial defeats at the hands of
invading fearsome military hordes.

The present is liable to confusion. Our minds are subjected to determinate and indeterminate
ideological pressures. Very often man walks in the darkness of a blind alley obeying the pullings and
pushings of hidden and unhidden forces, or the arcane predeterminations of the genes of human
chromosomes. A rudderless ship floating in the middle of an ocean without any visible shoreline, is
bound to be wrecked at the advent of the first typhoon. From early youth we begin to hear and learn
about the true ideals. Since then we set them as the guiding stars in our actions and decisions, but
in the long travel of life, many times the clouds dim or completely darken those stars and then we
have only to rely on our faith in their existence and on habit, becoming unerring if long enough
followed, of adjusting our conduct to their guidance in calm and cloudless nights. We are sitting in
judgment to pass upon the conflicts, disputes and disagreements of our fellowmen. Let us not forget
that the day shall come that we will be judged on how are are judging. Posterity shall always have
the final say. When the time solvent has dissolved the human snag, then shall be rendered the final
verdict as to whether we have faced our task fearlessly or whether our hearts have shrunk upon the
magnitude of our duties and have chosen the most comfortable path of retreat. Then it will be
conclusively known whether did keep burning the tripod fire in the temples of old. Some of us will just
return into anonymity, covered by the cold mist of historical oblivion; others will have their names as
by words repeatedly pronounced with popular hate or general contempt; and still others will be
remembered with universal gratefulness, love and veneration, the guard on accorded to all those
who remained faithful to the fundamental tenets of justice. Winnowing time will sift the chaff from the
grain.

This is one of the cases upon which future generations will decide if this tribunal has the sturdy
courage to keep its responsibility in proper high level. It will need the passing of decades and
perhaps centuries before a conclusive verdict is rendered, whether we should merit the scorn of our
fellow citizens and our decision shall be cursed as the Dred Scot decision of Chief Justice Taney,
the one that plunged the United States into civil war, or whether in the heart of each future Filipino
citizen there will be a shrine in which our memory will be remembered with gratefulness, because we
have shown the far-reaching judicial statesmanship of Chief Justice Marshall, the legal genius who
fixed and held the rock bottom foundations which made of the American Constitution the veritable
supreme law of the land and established the role of the tribunals as the ultimate keepers of the
Constitution. But for sure it will be rendered, and it will be impartial and unbiased, exacting and
pitiless, with unappealable finality, and for the one condemned Dante wrote this lapidary line:
"lasciate ogni speranza."

Unless the vision of our mental eyes should be shut up by the opaque cornea of stubborn refusal to
see reality or should be impaired by the polaroid visors of prejudice, there is no question that at the
time when the resolution in question, proposing an amendment to the Constitution, was adopted, the
members of the Senate were 24 and the members of the House of Representatives were 96, and
that the 16 members of the Senate who voted in favor of the resolution, by undisputable
mathematical computation, do not constituted three-fourths of the 24 members thereof, and the 68
members of the House of Representatives who voted for the resolution, by equally simple
arithmetical operation, do not constitute three-fourths of the 96 members of the said chamber. The
official certifications made by the presiding officers of the two houses of Congress to the effect that
three-fourths of all the members of the Senate and three-fourths of all the members of the House of
Representatives voted for the resolution, being untrue, cannot change the facts. Nothing in existence
can. The certification, being a clear falsification of public document punished by article 171 of the
Revised Penal Code with prision mayor and a fine not to exceed P5,000, cannot give reality to a
fiction based in a narration of facts that is in conflict with the absolute metaphysical reality of the
events.

FACTS OF THE CASE

Petitioners are citizens of the Philippines, taxpayers and electors, and besides some of them are
members of the Senate, others are members of the House of Representatives, and still others are
presidents of political parties, duly registered, with considerable following in all parts of the
Philippines.

The first three respondents are chairman and members, respectively, of the Commission on
Elections and the remaining three are respectively the Treasurer of the Philippines, the Auditor
General and the Director of the Bureau of Printing.

Petitioners alleged that the Senate is actually composed of 24 Senators, 8 elected in 1941 and 16 in
April 23, 1946, and that the House of Representatives is composed of 98 members, elected on April
23, 1946, minus 2d who resigned to assume other positions in the Government.
On September 18, 1946, there was presented for adoption by the Congress of the Philippines a
resolution proposing an amendment to the Constitution of the Philippines to be appended as an
ordinance thereto, which reads as follows:

Resolved by the Senate and House of Representatives, of the Philippines in joint session
assembled, by a vote of not less than three-fourths of all the Members of each House voting
separately. To propose, as they do hereby propose, the following amendment to the
Constitution of the Philippines to be appended as an Ordinance thereto:

ORDINANCE APPENDED TO THE CONSTITUTION

"Notwithstanding the provisions of section one, Article Thirteen, and section eight, Article
Fourteen, of the foregoing Constitution, during the effectivity of the Executive Agreement
entered into by the President of the Philippines with the President of the United States on the
fourth of July, nineteen hundred and forty-six, pursuant to the provisions of Commonwealth
Act Numbered seven hundred and thirty-three, but in no case to extend beyond the third of
July, nineteen hundred and seventy-four, the disposition, exploitation, development, and
utilization, of all agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces and sources of potential energy, and other
natural resources of the Philippines, and the operation of public utilities, shall, if open to any
person, be open to citizens of the United States and to all forms of business enterprise
owned or controlled, directly or indirectly, by citizens of the United States in the same
manner as to, and under the same conditions imposed upon, citizens of the Philippines or
corporations or associations owned or controlled by citizens of the Philippines."

This amendment shall be valid as a part of the Constitution when approved by a majority of
the votes cast in an election at which it is submitted to the people for the ratification pursuant
to Article XV of the Constitution.

Sixteen Senators voted in favor of the resolution and 5 against it, and 68 Representatives voted in
favor and 18 against.

Thereafter, Congress passed Republic Act No. 73 calling a plebiscite to be held on March 11, 1947,
for the purpose of submitting to the people the proposed amendment embodied in the resolution,
and appropriating P1,000,000 for said purpose.

Petitioners assail the validity of Republic Act No. 73 as unconstitutional because Congress may not,
by said act, submit to the people for approval or disapproval the proposed amendment to the
Constitution embodied in resolution Exhibit B inasmuch as, to comply with the express provisions of
Article XV of the Constitution, requiring the affirmative votes of three-fourths of all the members of
the Senate and of the House of Representatives voting separately, three-fourths of the 24 members
of the Senate is constituted by at least 18 Senators, 2 more than those who actually voted for the
resolution in question, and three-fourths of the 98 members of the House of Representatives should
at least be 72 Representatives, or 4 more than those who actually voted for the resolution.

Respondents deny that the Senate is composed of 24 Senators, by excluding from them petitioners
Jose O. Vera, Ramon Diokno and Jose E. Romero and allege that the House of Representatives is
not composed of 98 members but of only 90. They admit that at the joint session of Congress to
consider the resolution Exhibit B, in favor of the resolution 16 votes were cast in the Senate and in
the House of Representatives 68 and 5 in the Senate and 18 in the House of Representatives had
voted against. They admit the approval of Republic Act No. 73 and that necessary steps to hold the
plebiscite therein provided are being taken, but deny that said act is unconstitutional, and byway of
defense, allege that the resolution Exhibit B was adopted by three-fourths of all the qualified
members of the Senate and of the House of Representatives voting separately and, consequently,
Republic Act No. 73, ordering its submission to the people for approval or disapproval, fixing a date
for a general election, and appropriating public funds for said purpose, is valid and constitutional.

At the hearing of this case both parties submitted the following stipulation:

The parties through their undersigned counsel hereby stipulate the following facts:

1. That Messrs. Jose O. Vera, Ramon Diokno and Jose E. Romero were, by the majority
vote of the Commission on Elections, proclaimed elected senators in the election of April 23,
1946;

2. That when the Senate convened on May 25, 1946, the said senators-elect took part in the
election of the President of that body; but that before the senators-elect were sworn in by the
President of the Senate, a resolution was presented, and subsequently approved, to defer
the administration of oath and the seating of Messrs. Jose O. Vera, Ramon Diokno, and Jose
E. Romero, pending the hearing and decision of the protest lodged against their election;

3. That on the 25th of May, 1946, the said senators individually took their alleged oath of
office before notaries public, and not on the floor, and filed said oaths with the Secretary of
the Senate during the noon recess of the said date;

4. That Messrs. Vera and Romero filed with the Auditor of the Senate other oaths of office
accomplished by them outside of the floor before a notary public and the Secretary of the
Senate, on September 5 and August 31, 1946, respectively; and that their corresponding
salaries from April 23, 1946, were paid on August 31, 1946;

5. That Mr. Diokno, having left for the United States, his son Jose W. Diokno filed a copy of
Mr. Diokno's alleged oath of office dated May 25, 1946, with the Auditor of the Senate on
October 15,1946, and on said date his salary was paid corresponding to the period from April
23 to October 15, 1946;

6. That all three have subsequently received their salaries every fifteen days;

7. That since the approval of the resolution deferring their seating and oaths up to the
present time, the said Messrs. Vera, Diokno, and Romero have not been allowed to sit and
take part in the deliberations of the Senate and to vote therein, not do their names appear in
the roll of the Senate;

8. That before May 25, 1946, the corresponding provincial boards of canvassers certified as
having been elected in the election held on April 23, 1946, ninety-eight representatives,
among them Messrs. Alejo Santos and Jesus B. Lava for Bulacan, Jose Cando and
Constancio P. Padilla for Nueva Ecija, Amado M. Yuson and Luis Taruc for Pampanga,
Alejandro Simpauco for Tarlac, and Vicente F. Gustilo for Negros Occidental;

9. That the aforesaid eight members-elect of the House of Representatives took part in the
election of the Speaker of the House of Representatives held on May 25, 1946;

10. That before the members-elect of the House of Representatives were sworn in by the
Speaker, Mr. Topacio Nueno, representative for Manila, submitted a resolution to defer the
taking of oath and seating of Luis Taruc and Amado Yuson for Pampanga, Constancio P.
Padilla and Jose Cando for Nueva Ecija, Alejandro Simpauco for Tarlac, Alejo Santos and
Jesus Lava for Bulacan, and Vicente F. Gustilo for Negros Occidental "pending the hearing
and decision on the protests lodged against their election," copy of the resolution being
attached to and made part of this stipulation as Exhibit 1 thereof;

11. That the resolution Exhibit 1 was, upon motion of Representative Escareal and approved
by the House, referred for study to a committee of seven, which up to the present has not
reported, as shown by the Congressional Record for the House of Representatives;

12. That the eight representatives-elect included in the resolution were not shown in on the
floor and have not been so sworn in or allowed to sit up to the present time, nor have they
participated in any of the proceedings of the House of Representatives except during the
debate of the Escareal motion referred to in paragraph 11 hereof, nor cast any vote therein
since May 25, 1946, and their names do not appear in the roll of the members of the House
except as shown by the Congressional Record of the House of Representatives, nor in the
roll inserted in the official program for the inauguration of the Republic of the Philippines
hereto attached as Exhibit 2 hereof;

13. That the eight representatives-elect above mentioned took their alleged oaths of office on
the date set opposite their names, as follows:

Jose Cando May 25, 1946

Vicente Gustilo May 25, 1946
Constancio Padilla May 22, 1946
Alejo Santos May 23, 1946
Luis M. Taruc May 25, 1946
Amado M. Yuson May 25, 1946
Jesus B. Lava May 25, 1946
Alejandro Simpauco May 25, 1946

all of which oaths were taken before notaries public, with the exception of the first four who
took their oaths before Mr. Narciso Pimentel, Secretary of the House;

14. That said oaths were filed with the Auditor through the office of the Secretary of the
House of Representatives;

15. That the persons mentioned in paragraph 13 were paid salaries for the term beginning
April 23, 1946, up to the present, with the exception of Messrs. Luis Taruc and Jesus Lava,
to whom payment was suspended since August 16;

16. That Messrs. Alejo Santos and Vicente F. Gustilo took their oaths before the Speaker of
the House of Representatives and were allowed to sit on September 30, 1946, the last day of
the Special Sessions;

17. That in addition to the eight persons above mentioned, two members of the House,
Representatives Jose C. Zulueta and Narciso Ramos, had resigned before the resolution
proposing an amendment to the Constitution was discussed and passed on September
18,1946;
 18. That the voting on the resolution proposing an amendment to the Constitution was made
by the Secretary calling the roll of each house and the votes cast were as shown in the
attached certificate of the Secretary of the House of Representatives hereto attached,
marked Exhibit 3 and made a part hereof; and

19. That the Congressional Records for the Senate and House of Representatives and the
alleged oaths of office are made a part of this Stipulation by reference thereto, respondents
reserving the right to question their materiality and admissibility.

Manila, Philippines, November 25, 1946.

For the petitioners: For the respondents:

JOSE E. ROMERO ROMAN OZAETA

ANTONIO BARREDO Secretary of Justice

JOSE B.L. REYES

First Asst. Solicitor General

PETITIONER'S PERSONALITY

Whether petitioners have or have not the personality to file the petition in this case is the first
question we have to consider.

No party raised the question, but it having arisen in the course of the Court's deliberation, we should
not evade deciding it and giving what in law and justice should be the answer.

To our mind there is no doubt that petitioners have the personality to institute the present recourse of
prohibition. If petitioners should lack that personality, such legal defect would not certainly have
failed to be noticed by respondents themselves.

Respondents' failure to raise the question indicates their conviction that petitioners have the
necessary legal personality to file the petition, and we do not see any reason why such personality
should be put in doubt.

Petitioners are divided into three groups: the first is composed of senators; the second, of
representatives; and the third, of presidents of four political parties.

All of the individuals composing the first two groups, with the exception of Senators Jose O. Vera,
Ramon Diokno, and Jose E. Romero, are members of either of the two houses of Congress and took
part in the consideration of Resolution Exhibit B and of Republic Act No. 73, while the above three
excepted senators were the ones who were excluded in the consideration of said resolution and act
and were not counted for purposes of determining the three-fourths constitutional rule in the
adoption of the resolution.

In paragraph eight of the petition it is alleged that respondents have taken all the necessary steps for
the holding of the general election on March 11, 1947, and that the carrying out of said acts
"constitute an attempt to enforce the resolution and act aforementioned in open violation of the
Constitution," is without or in excess of respondents' jurisdiction and powers, "violative of the rights
of the petitioners who are members of the Congress, and will cause the illegal expenditure and
disbursement of public funds and end in an irreparable injury to the taxpayers and the citizens of the
Philippines, among whom are the petitioners and those represented by them in their capacities
mentioned above."

There should not be any question that the petitioners who are either senators or members of the
House of Representatives have direct interest in the legal issues involved in this case as members
of the Congress which adopted the resolution, in open violation of the Constitution, and passed the
act intended to make effective such unconstitutional resolution. Being members of Congress, they
are even duty bound to see that the latter act within the bounds of the Constitution which, as
representatives of the people, they should uphold, unless they are to commit a flagrant betrayal of
public trust. They are representatives of the sovereign people and it is their sacred duty to see to it
that the fundamental law embodying the will of the sovereign people is not trampled upon.

The four political parties represented by the third group of petitioners, represent large groups of our
population, perhaps nearly one-half of the latter, and the numerous persons they represent are
directly interested and will personally be affected by the question whether the Constitution should be
lightly taken and can easily be violated without any relief and whether it can be amended by a
process openly repugnant to the letter of the Constitution itself.

As a matter of fact, the vital questions raised in this case affect directly each and every one of the
citizens and inhabitants of this country. Whether our Constitution is, as it is supposed to be, a
paramount law or just a mere scrap of paper, only good to be thrown into a waste basket, is a matter
of far-reaching importance to the security, property, personal freedom, life, honor, and interests of
the citizens. That vital question will necessarily affect the way of life of the whole people and of its
most unimportant unit. Each and every one of the individuals inhabiting this land of ours shall have
to make plans for the future depending on how the question is finally decided. No one can remain
indifferent; otherwise, it will at his peril.

Our conclusion is that petitioners have full legal personality to institute the present action; and much
more, those who are members of Congress have the legal duty to institute it, lest they should betray
the trust reposed in them by the electorate.

24 SENATORS

The first question raised by respondents' answer refers to the actual number of the members of the
Senate. According to petitioners there are 24 of them while according to respondents there are only
21, excluding Senators Jose O. Vera, Ramon Diokno, and Jose E. Romero, because, according to
them, "they are not duly qualified and sworn in members of the Senate."

This allegation appears to be belied by the first seven paragraphs of the stipulation of facts
submitted by both parties.

No amount of sophism, of mental gymnastics or logo-daedaly may change the meanings and effects
of the words placed by respondents themselves in said seven paragraphs. No amount of argument
may delude anyone into believing that Senators Vera, Diokno, and Romero are not senators
notwithstanding their having been proclaimed as elected senators, their having taken part in the
election of the President of the Senate, their having taken their oaths of office, and their receiving
salaries as senators.

Such a paradoxical proposition could have been driven into acceptance in the undeveloped brains of
the pithecanthropus or gigantopithecus of five hundred millennia ago, but it would be unpardonably
insulting o the human mind of the twentieth century.
Our conclusion is that Senators Vera, Diokno, and Romero should be counted as members of the
Senate, without taking into consideration whatever legal effects the Pendatun resolution may have
produced, a question upon which we have already elaborated in our opinion in Vera vs. Avelino (77
Phil., 192). Suspended or not suspended, they are senators anyway, and there is no way of ignoring
a fact so clear and simple as the presence of the sun at day time. Therefore, counting said three
Senators, there are 24 Senators in all in the present Senate.

96 REPRESENTATIVES

The next question raised by respondents is their denial of petitioners' allegations to the effect that
the present House of Representatives is composed of 98 members and their own allegation to the
effect that at present "only 90 members have qualified, have been fully sworn in, and have taken
their seats as such."

Again respondents' allegations are belied by paragraphs eight to seventeen of the stipulation of
facts.

The disagreement between the parties is as to whether or not Representatives Cando, Gustilo,
Padilla, Santos, Taruc, Yuson, Lava and Simpauco, mentioned in paragraph 13 of the stipulation of
facts, are members of the House of Representatives.

The facts stipulated by the parties proved conclusively that said eight persons are actual members of
the House of Representatives. We may even add that the conclusiveness about said eight
representatives is even greater than in the case of Senators Vera, Diokno, and Romero, because no
resolution of suspension has ever been adopted by the House of Representatives against said eight
members, who are being deprived of the exercise of some of their official functions and privileges by
the unipersonal, groundless, dictatorial act of the Speaker.

That illegal deprivation, whose counterpart can only be found in countries where the insolence of
totalitarian rulers have replaced all constitutional guarantees and all concepts of decent government,
raises again a constitutional question: whether it is permissible for the Speaker of the House of
Representatives to exercise the arbitrary power of depriving representatives duly elected by the
people of their constitutional functions, privileges, and prerogatives. To allow the existence of such
an arbitrary power and to permit its exercise unchecked is to make of democracy a mockery.

The exercise of such an arbitrary power constitutes a want on onslaught against the sovereignty
itself of the people, an onslaught which may cause the people sooner or later to take justice in their
own hands. No system of representative government may subsist if those elected by the people may
so easily be silenced or obliterated from the exercise of their constitutional functions.

From the stipulation of facts, there should not be any question that at the last national election, 98
representatives were elected and at the time the resolution Exhibit B was adopted on September 18,
1946, 96 of them were actual members of the House, as two (Representatives Zulueta and Ramos)
has resigned.

Applying the three-fourth rule, if there were 24 senators at the time the resolution was adopted;
three-fourths of them should at least be 18 and not the 16 who only voted in favor of the resolution,
and if there were 96 representatives, three-fourths of them should certainly be more than the 68 who
voted for the resolution. The necessary consequence is that, since not three-fourths of the senators
and representatives voting separately have voted in favor of the resolution as required by Article XV
of the Constitution, there can be no question that the resolution has not been validly adopted.
We cannot but regret that our brethren, those who have signed or are in agreement with the majority
opinion, have skipped the questions as to the actual membership of the Senate and House of
Representatives, notwithstanding the fact that they are among the first important ones squarely
raised by the pleadings of both parties. If they had taken them into consideration, it would seem
clear that their sense of fairness will bring them to the same conclusion we now arrived at, at least,
with respect to the actual membership of the House of Representatives.

Upon our conclusions as to the membership of the Senate and House of Representatives, it appears
evident that the remedy sought for in the petition should be granted.

JURISDICTION OF THE SUPREME COURT

Without judging respondents' own estimate as to the strength of their own position concerning the
questions of the actual membership of the Senate and House of Representatives, it seems that
during the oral and in the written arguments they have retreated to the theory of conclusiveness of
the certification of authenticity made by the presiding officers and secretaries of both House of
Congress as their last redoubt.

The resolution in question begins as follows: "Resolved by the Senate and House of
Representatives of the Philippines in joint session assembled, by a vote of not less than three-
fourths of all the members of each House voting separately, . . .."

Just because the adoption of the resolution, with the above statement, appears to be certified over
the signatures of the President of the Senate and the House of Representatives and the Secretaries
of both Houses, respondents want us to accept blindly as a fact what is not. They want us to accept
unconditionally as a dogma, as absolute as a creed of faith, what, as we have shown, appears to be
a brazen official falsehood.

Our reason revolts against such an unethical proposition.

An intimation or suggestion that we, in the sacred temple of justice, throwing overboard all scruples,
in the administration of justice, could accept as true what we know is not and then perform our
official functions upon that voluntary self-delusion, is too shocking and absurb to be entertained even
for a moment. Anyone who keeps the minimum sense of justice will not fail to feel aghast at the
perversion or miscarriage of justice which necessarily will result from the suggestion.

But the theory is advanced as a basis to attack the jurisdiction of this Court to inquire behind the
false certification made by the presiding officers and the secretaries of the two Houses of Congress.

Respondents rely on the theory of, in the words of the majority opinion, "the conclusiveness on the
courts of an enrolled bill or resolution."

To avoid repeating the arguments advanced by the parties, we have made part of this opinion, as
Appendices A, B, and C,1 the memoranda presented by both petitioners and respondents, where
their attorneys appear to have amply and ably discussed the question. The perusal of the
memoranda will show petitioners' contentions to be standing on stronger ground and, therefore, we
generally agree with their arguments.

In what follows we will try to analyze the positions taken in the majority opinion.

POLITICAL QUESTIONS
The majority enunciates the proposition that "political questions are not within the province of the
judiciary," except "by express constitutional or statutory provision" to the contrary. Then argues that
"a duly certified law or resolution also binds the judges under the 'enrolled bill rule' out of respect to
the political departments."

The doctrine is predicated "on the principle of the separation of powers."

This question of separation of powers is the subject of discussion in the case of Vera vs.
Avelino, supra. We deem unnecessary to repeat what we have already said in our opinion in said
case, where we have elaborated on the question.

Although the majority maintains that what they call the doctrine that political questions are not within
the province of the judiciary is "too well-established to need citation of authorities," they recognize
the difficulty "in determining what matters fall under the meaning of political questions."

This alleged doctrine should not be accepted at its face value. We do not accept it even as a good
doctrine. It is a general proposition made without a full comprehension of its scope and
consequences. No judicial discernment lies behind it.

The confession that the "difficulty lies in determining what matters fall within the meaning of political
question" shows conclusively that the so-called doctrine has recklessly been advanced.

This allegedly "well-established" doctrine is no doctrine at all in view of the confessed difficulty in
determining what matters fall within the designation of political question. The majority itself admits
that the term "is not susceptible of exact definition, and precedents and authorities are not always in
full harmony as to the scope of the restrictions, on this ground, on the courts to meddle with the acts
of the political department of the government."

Doctrine is that "what is taught; what is held; put forth as true, and supported by a teacher, a school,
or a sect; a principle or position, or the body of principles, in any branch of knowledge; tenet; dogma;
principle of faith. "It is a synonym of principle, position, opinion, article, maxim, rule, and axiom. in its
general sense, doctrine applies to any speculative truth or working principle, especially as taught to
others or recommended to their acceptance. Therefore, to be true, it should be expressed on simple
and self-evident terms. A doctrine in which one of the elemental or nuclear terms is the subject of an
endless debate is a misnomer and paradox.

A doctrine is advanced and accepted as an established truth, as a starting point for developing new
propositions, as a guiding principle in the solution of many problems. It is a groundwork for the
building of an intellectual system. It is the basis of a more or less complex legal structure. If not the
cornerstone, it should at least be one of the main columns of an architectonic construction. If that
groundwork, cornerstone or column is supported by a thing whose existence still remains in dispute,
it is liable to fall.

We irrevocably refuse to accept and sanction such a pseudo-doctrine which is based on the
unsettled meaning of political question. The general proposition that "political questions are not
within the province of the judiciary" is just one of the many numerous general pronouncements made
as an excuse for apathetic, indifferent, lazy or uncourageous tribunals to refuse to decide hard or
ticklish legal issues submitted to them.

It belongs to the category of that much-vaunted principle of separation of powers, the handful of
sand with which judicial ostriches blind themselves, as if self-inflicted blindness may solve a problem
or may act as a conjuration to drive away a danger or an evil.
We agree with the majority that the proposal to amend the Constitution and the process to make it
effective, as provided in Article XV of the Constitution, are matters of political nature, but we cannot
agree with their conclusion that a litigation as to whether said article has been complied with a
violated is beyond the jurisdiction of the tribunals, because to arrive at this conclusion we must
accept as a major premise the pseudo-doctrine which we have precisely exposed as erroneous and
false.

Is there anything more political in nature than the Constitution? Shall all questions relating to it,
therefore, betaken away from the courts? Then, what about the constitutional provision conferring
the Supreme Court with the power to decide "all cases involving the constitutionality of a treaty or a
law?"

COLEMAN versus MILLER

The decision of the United States Supreme Court in Coleman vs. Miller (122 A. L. R., 625) is invoked
as the mainstay of the majority position.

No less than eight pages of the majority opinion are occupied by the exposition and analysis of the
decision of the Supreme Court.

The case is invoked as authority for the conclusion that "the efficacy of ratification by the State
legislature of a proposed amendment to the federal Constitution" and that "the decision by Congress,
in its control of the Secretary of State of the questions of whether an amendment has been adopted
within a reasonable time from the date of submission to the State legislature," are political questions
and not justiciable.

At the outset it must be noted that the two above mentioned questions have no similarity or analogy
with the constitutional questions herein discussed. The questions as to the efficacy of the ratification
by the Senate of Kansas of the Child Labor amendment proposed by the United States Congress in
June, 1924, and upon the decision of said Congress, "in its control of the Secretary of State,"
whether the amendment has been adopted "within a reasonable time from the date of submission to
the State legislature," either one of them does not raise a controversy of violation of specific
provisions of the Constitution as the ones raised in the present case.

No specific constitutional provision has been mentioned to have been violated because in January,
1925, the Legislature of Kansas rejected the amendment, a copy of the rejection having been sent to
the Secretary of State of the United States, and in January, 1927, a new resolution ratifying the
amendment was adopted by the Senate of Kansas on a 21-20 division, the Lieutenant Governor
casting the deciding vote. Neither was there such mention of constitutional violation as to the effect
of the previous rejection and of the lapse of time after submission of the amendment to the State
legislature.

No constitutional provision has been pointed out to have been violated because the Lieutenant
Governor had cast his vote or because by the lapse of time from June, 1924 to March, 1927, the
proposed amendment had allegedly lost its vitality.

It is only natural that, in the absence of a constitutional provision upon the efficacy of ratification by a
State legislature of a proposed amendment, it was within the ultimate power of the United States
Congress to decide the question, in its decision rendered in the exercise of its constitutional power,
to control the action of the Secretary of State, and the promulgation of the adoption of amendment
could not be controlled by the courts.
Evidently, the invoked authority has no bearing at all with the matters in controversy in the present
case.

We note, as observed in the majority opinion, that the four opinions in Coleman vs. Miller, according
to the American Law Reports, show "interestingly divergent but confusing positions of the justices,"
and are the subject of an amusing article in 48 Yale Law Journal, 1455, entitled "Sawing a Justice in
Half," asking how it happened that the nine-member United States Supreme Court could not reach a
decision on the question of the right of the Lieutenant Governor of Kansas to cast his vote, because
the odd number of justices was "equally divided."

How such a "confusing" and "amusing" four-opinion decision in Coleman vs. Miller could be an
authority is beyond our comprehension.

GREEN versus WELLER

One of the authorities upon which the majority relies is the decision of the Mississippi Supreme
Court in Green vs.Miller (32 Miss., 650), quoting one paragraph thereof.

Here again we have a case of inapplicable authority, unless taken in its reversed effect.

The Mississippi Supreme Court maintains that there is nothing in the nature of the submission to the
people of a proposal to amend the Constitution which should cause the free exercise of it to be
obstructed or that could render it dangerous to the stability of the government, but in making this
pronouncement, it assumes that the submission is made "in a established form," adding that the
means provided for the exercise by the people of their sovereign right of changing the fundamental
law should receive such a construction as not to trample upon the exercise of their right, and that 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."

So the authority, if clearly interpreted, will lead us to the conclusion that the majority position is
wrong because the Mississippi Supreme Court, in making the pronouncement, upon the assumption
that the submission to the people is made "in a established form" and "in the mode prescribed" by
the Constitution, namely, in accordance with the provisions of the instrument, the pronouncements
would be the opposite if, as in the present case, the submission of the proposal of amendment to the
people is made through a process flagrantly violative of the Constitution, aggravated by wanton
falsification of public records and tyrannical trampling of the constitutional prerogatives of duly
elected representatives of the people.

MR. JUSTICE BLACK

The concurring opinion of Mr. Justice Black, joined in by Mr. Justice Roberts, Mr. Justice Frankfurter
and Mr. Justice Douglas, in the "confusing" and "amusing" decision in Coleman vs. Miller, is also
invoked by the majority, but this other authority seems equally reluctant to offer its helping hand to a
helpless, desperate position.

The major premise of the concurring opinion is as follows: "The Constitution granted Congress
exclusive power to control submission of constitutional amendments."

Everybody ought to know that no such an unlimited, unchecked, omnipotent power is granted by our
fundamental law to the Congress of the Philippines. Our Congress may propose amendments or call
a convention to make the proposal, but that is all. Nowhere in the Constitution can be found any
word, any grammatical sign, not even the faintest hint that in submitting the proposed amendments
to the people, Congress shall have "exclusive power to control the submission." That submission
must be provided by law, and no law may be enacted and come into effect by the exclusive power of
Congress. It needs the concurring action of the President of the Philippines. And if the law happens
to violate the fundamental law, courts of justice may step in to nullify its effectiveness. After the law
is enacted, its execution devolves upon the Executive Department. As a matter of fact, it is the
Executive Department which actually submits to the people the proposed amendment. Congress
fixes the date of submission, but the President of the Philippines may refuse to submit it in the day
fixed by law if war, rebellion, or insurrection prevents a plebiscite from proceeding.

After showing that Mr. Justice Black started his argument from a major premise not obtainable in the
Philippines, his conclusions cannot help the majority in anyway.

MR. JUSTICE FRANKFURTER

The concurring opinion of Mr. Justice Frankfurter in the "confusing" and "amusing" case of
Coleman vs. Miller is the next authority invoked by the majority, but the opinion does not offered
much help. The justice maintains that the proceedings for voting in legislative assemblies "are
matters that concern not merely political actions but are also of the very essence of political action,"
and then advances the following argument: "To open the law-courts to such controversies is to have
courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative
assemblies."

The argument has no weight at all. The argument merely displays an attitude, one of simple distaste
for the idea, but fails to give any sensible reason for the attitude. Ina totalitarian regime, where
decisions are rendered not in answer to the promptings of a sense of justice, but as expressions of
moods, caprices and whims of arbitrary rulers, Mr. Justice Frankfurter's attitude could be taken as
the law, but then it would be necessary to elevate him first to the category of a fuehrer.

In our jurisdiction personal attitudes are not the law. Here, justice must be founded on reason, but
never on passing unreasoned moods, judicial or otherwise.

We regret that we cannot agree with the majority's sharing Mr. Justice Frankfurter's views, which in
their judgment are in accord "with sound principles of political jurisprudence and represent liberal
and advanced thought on the workings of constitutional and popular government. "Our regret is not
for ourselves alone but for those who happen to accept as authority the unreasoned and
unexplained mental attitude of a judicial officer of a foreign country, praising it even with the much-
abused label as "liberal," notwithstanding the fact that it represents the whimsical rule of personal
attitudes and not the rule of well-matured reason.

THE ENROLLED BILL THEORY

This theory is amply discussed in the memoranda of the parties attached hereto as Appendices A, B,
and C. Although we consider it unnecessary to enlarge the discussion, we deem it convenient to
make a little analysis of what is stated in the majority opinion. Respondents contend, with the full
approval of the majority, that a duly authenticated bill or resolution imports absolute verity and is
binding on the courts.

The present case is a conclusive evidence of the absurdity of the theory. How can we accept the
absolute verity of the presiding officers' certification that the resolution in question has been adopted
by three-fourths of all the members of the Senate and of the House of Representatives, when as a
matter of undisputable fact the certification is false? How can we accept a theory which elevates a
false-hood to the category of truth?

The majority alleges that the rule is the one prevailing in England. Because the English have
committed the nonsense of accepting the theory, is that reason for Filipinos to follow suit? Why, in
the administration of justice, should our tribunals not think independently? Our temple of justice is
not presided by simians trained in the art of imitation but by human beings, and human beings must
act according to reason, never just to imitate what is wrong, although such mistakes may happen to
be consecrated as a judicial precedent. It would be inconceivable for our courts to commit such a
blunder.

Repeating what Wigmore has said (4 Wigmore on Evidence, 685, footnote), the majority states that
in the United States the jurisdictions are divided almost equally pro and con on the theory, although
in petitioners' memorandum Appendix A there appears more up-to-date evidence to the effect that
there is a great majority for the rejection. But to our mind, mere numbers as to pro and con seem to
us immaterial in the decision as to whether the theory is or is not correct. Numbers do not make
reason nor justice.

The majority contends that the theory conforms to the express policy of our law-making body,
invoking to said effect the now obsolete section 313 of the old Code of Civil Procedure, as amended
by Act No. 2210.

Even if we should follow the anachronistic practice of deciding issues upon the authority of laws
which have been repealed or abolished, still the evidence pointed out by the majority does not
support their contention. Section 313 alluded to enumerates the evidence that may prove the
procedures of the defunct Philippine Commission or of any legislative body that may be provided for
in the Philippines, with the proviso that the existence of a copy of acts of said commission or the
Philippine Legislature, signed by the presiding officers and secretaries of said bodies, is a conclusive
proof "of the provisions of such acts and of the due enactment thereof."

This proviso has been repealed by its non-inclusion in the Rules of Court. Sections 5 and 41 of Rule
123 show conclusively that this Supreme Court, in making the rules effective since July 1, 1940,
rejected the proviso as unreasonable and unjust. Section 5 provides that we may take judicial notice
of the official acts of Congress and section 41 provides what evidence can be used to prove said
official acts, but nowhere in the rules can a provision be found that would make conclusive a
certification by the presiding officers and secretaries of both House of Congress even if we know by
conclusive evidence that the certification is false.

The allegation that the theory in question conforms to the express policy of our lawmaking body,
upon the very evidence used in support thereof, after a little analysis, has to banish as a mid-
summer night's dream.

50 AMERICAN JURISDICTION, SECTION 150

In support of the theory of conclusiveness of the enrollment, the authority of 50 American

Jurisprudence, 150 is invoked as reasons for the theory.

We will analyze the reasons adduced:

1. Respect due to a coequal and independent department of the government. This must be the
strongest one, when it is first mentioned. It is so flimsy to require much discussion. Shall we sacrifice
truth and justice for the sake of a social courtesy, the mutual respect that must be shown between
different departments of the government? Has our sense of evaluation of spiritual values become so
perverted that we can make such a blunder in our choice? Since when have the social or official
amenities become of paramount value to the extent of overshadowing the principles of truth and
justice?

2. Because without the theory, courts would have to make "a n inquisition into the conduct of the
members of the legislature, a very delicate power." This second reason is premised not on a
democratic attitude, but rather on a Fascistic one. It is premised on the false belief that the members
of the majority are a king of emperos of Japan, to be worshipped but never to be discussed. The
ideology depicted by the second reason should be relegated to where it belongs: the archeological
museum.

3. "The rule is also one of convenience." This reason again shows a perverted evaluation of human
values. Is justice to be sacrificed for the sake of convenience?

4. "Otherwise after relying on the prima facie evidence of the enrolled bills authenticated as executed
by the Constitution, for years, it might be ascertained from the journals that an act heretofore
enforced had never become a law." This last reason personifies unreasonableness to the nth
degree. So we leave it as it is, as a perpetual evidence of the extent to which legal stupidity may
reach.

WIGMORE ON EVIDENCE

Now let us examine the arguments of the next authority invoked by the majority, Wigmore on
Evidence. We will also analyzed the arguments relied upon.

1. That to go beyond the enrolled bill "would unsettle the entire statute law of the State." This
argument, as it appears quoted in the majority decision, is premised on the unreliability of legislative
journals, and it seems to depict a mind poisoned by prejudice, as shown by the following: "We are to
remember the danger, under the prevalence of such a doctrine, to be apprehended from the
intentional corruption of evidences of this character. It is scarcely too much to say that the legal
existence of almost every legislative action would be at the mercy of all persons having access to
these journals. . . ."

The argument should be taken into consideration in connection with American experience, which
seems not to be too flattering to our former metropolis.

Our own personal experience of more than a decade in legislative processes convinces us that
Wigmore's assumption does not obtain in the Philippines. It is true that in the pre-constitution
legislative enactments we have seen few instances in which there had been disagreement between
what has actually been passed, as shown by the journal, and the authenticated enrolled bill. But the
instances were so few to justify entertaining here the same fears entertained by Wigmore in
America. Although those instances were few, we fought to correct the evil in the Constitutional
Convention, where we were able to introduce the following revolutionary provision in the
Constitution: "No bill shall be passed by either House unless it shall be printed and copies thereof in
their final from furnished each member at least three calendar days prior to its passage, except
when the President shall have certified to the necessity of its immediate enactment. Upon the last
reading of a bill no amendment thereof shall be allowed, and the question upon its passage shall be
taken immediately thereafter, and the yeas and nays entered in the journal." (Section 21 [2], Article
VI of the Constitution.)

This provision is an effective guarantee against the situation depicted by Wigmore's fears.
2. To the argument that if the authenticated roll is conclusive upon the courts, then less than a
quorum of each House may by the aid of presiding officers impose laws upon the State in defiance
of the inhibition of the Constitution, Wigmore answers: "This perhaps cannot be avoided absolutely.
But it applies also to all human agencies. It is not fit that the judiciary should claim for itself a purity
beyond all others; nor has it been able at all times with truth to say that its high places have not been
disgraced."

The answer is unconvincing. Because there can be and there have been blundering, disgraceful, or
corrupt judicial officers is no reason why arbitrary presiding officers and members of the legislature
should be allowed to have their way unchecked. Precisely the system of checks and balances
established by the Constitution presupposes the possibility of error and corruption in any department
of government and the system is established to put a check on them.

When the question of an unconstitutional, arbitrary or corrupt action by the legislature is placed at
the bar of justice, the judiciary must not shrink from its duty. If there is corruption in the judiciary, our
laws provide the proper remedy. Even we, the members of the highest tribunal, cannot with impunity
commit "culpable violation of the Constitution, treason, bribery, or other high crimes" without being
liable to be removed from office on impeachment, and we hope, if there is such a case, that the
House of Representatives and the Senate will do their duty in accordance with Article IX of the
Constitution, and not follow the uncourageous example which is given under the intellectual tutelage
of Wigmore.

THE CONSTITUTIONAL NUMERICAL RULES

The three-fourth rule has been provided in Article XV of the Constitution as a guarantee against the
adoption of amendments to the fundamental law by mere majorities.

The Constitution must be accorded more stability than ordinary laws and if any change is to be
introduced in it, it must be in answer to a pressing public need so powerful as to sway the will of
three-fourths of all the members of the Senate and of the House of Representatives. Said three-
fourth rule has been adopted by the Constitutional Convention, as all the other numerical rules, with
the purpose of avoiding any doubt that it must be complied with mathematical precision, with the
same certainty of all numbers and fractions expressed or expressible in arithmetical figures.

Where the Constitution says three-fourths of all the members of the Senate and of the House of
Representatives voting separately, it means an exact number, not susceptible of any more or less.
All the members means that no single member should be excluded in the counting. It means not
excluding three Senators and eight Representatives as respondents want us to do in order not to
cause any inconvenience to the presiding officers and secretaries of both Houses of Congress who
had the boldness of certifying that the three-fourth rule had been complied within the adoption of the
resolution in question, when such a certification is as false as any falsehood can be.

The three-fourth rule must not be left to the caprice of arbitrary majorities, otherwise it would be the
death knell of constitutionalism in our country. If a constitutional provision can be so trifled with, as
has happened in the adoption of the resolution in question, it would mean breaking faith with the
vitality of a government of laws, to enthrone in its stead a whimsical government of men.

The Constitution contains several numerical provisions. It requires that the Senate shall be
composed of 24 Senators (section 2, Article VI); that Congress shall by law make an apportionment
within three years after the return of every enumeration, and not otherwise (section 5, Article VI); that
each House may expel a member with the concurrence of two-third of all the members (section 10
[3], Article VI); that electoral tribunals shall each be composed of nine members, three Justices of
the Supreme Court and six legislature members (section 11, Article VI); that to overrun the veto of
the President, the concurrence of two-thirds of all the members of each House is necessary (section
20 [1], Article VI), and in certain cases the concurrence of three-fourths of all the members of each
House is necessary (section 20 [2], Article VI); that Congress shall, with the concurrence of two-
thirds of all the members of each House, have the sole power to declare war (section 25, Article VI);
that no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the
members of the Supreme Court (section 10, Article VIII); that the House of Representatives shall
have the sole power of impeachment by a vote of two-thirds of all its members (section 2, Article IX);
and that the Senate shall have the sole power to try all impeachments, but no person shall be
convicted without the concurrence of three-fourths of all the members of the Senate (section 3,
Article IX).

So it can be seen that the numerical rules inserted in the Constitution affect matters not of
momentary but of momentous importance. Each and every one of them should be given effect with
religious scruple, not only because our loyalty to the sovereign people so requires, but also because
by inserting them the Constitutional Convention had abided by the wise teachings of experience.

By denying the petition and allowing those responsible for the unconstitutional adoption of the
resolution in question to have their way is to set up a precedent that eventually may lead to the
supremacy of an empire of lawlessness. It will be tantamount to opening Pandora's box of evils and
disasters.

The power to declare was can only be exercised by Congress with the concurrence of two-thirds of
all the members of each House. From now on, by the simple expediency of certification by the
presiding officers and secretaries of both Houses that two-thirds had voted where a bare majority
had voted in fact, said majority may plunge our people into a maelstrome of war.

The Constitution provides that the power of impeachment needs the vote of two-thirds of all the
members of the House of Representatives. From now on, a mere plurality of one will be enough to
put impeachable high officials, including the President, on the carpet.

To convict an impeached officer the fundamental law requires the concurrence of three-fourths of all
the members of the Senate. From now on, that three-fourth rule may be dispensed with or
circumvented by not counting three actual Senators, as has been done in the resolution in question,
and thereby oust the President of the Philippines if he happens not to be in the good graces of a
senatorial majority.

Without entering into the merits of the proposed constitutional amendment, to submit which to the
people high-handed means have been resorted to, there can be no question that it is of vital
importance to the people and it will affect future generations to unimaginable extent. The
Constitutional Convention had thought it wise that before such a momentous proposal could be
submitted to the people the three-fourth rule should be adhered to by Congress.

QUOTATION FROM THE JALANDONI CASE

Months ago we stated: "It is high time to sound the clarion call that will summon all the forces of
liberalism to wage a crusade for human freedom. They should put on the armor of righteousness
and rally behind the banner for the vindication of the principles and guarantees embodied in the
Constitution and the high purposes of the Chapter of the United Nations." This, we said in our
dissenting opinion in People vs. Jalandoni, L-777. Concerning the judgment that the future may pass
upon the actuations of the Supreme Court, in that same opinion we ventured that the historian army,
under the heading of "Epoch of Great Reaction," write as follows:
 At no epoch of its history has the Supreme Court shown to be most reactionary and
retrogressive. When the victims of a constitutional violation, perpetrated by a group of the
highest officials of the government, came to if for redress, it adopted a hands-off policy,
showing lack of the necessary vitality to grapple with the situation and finding refuge in a
comfortable retreat, completely disappointing those who have pinned their faith and hope in it
as the first pillar of the Constitution and the inexpugnable bulwark of human fundamental
rights. The issue of human freedom was disposed of by them most discouragingly by
nullifying the right of an accused to be free on bail on appeal, in flagrant violation of a
constitutional guarantee and of one of the fundamental purposes and principles of the
Charter of the United Nations.

Upon touching the decision of this Court in the instant case, the same historian may record that the
highest tribunal of the new Republic of the Philippines has struck the hardest blow to the Philippine
constitutional system, by refusing to do its duty in giving redress in a clear case of violation of the
fundamental law, to the great disappointment, despair and apallment of millions of souls all over the
world who are pinning their hopes on constitutionalism for the survival of humanity.

The ideal of one world oftenly enunciated by progressive leaders in the deliberations of the several
organs of the United Nations is predicated in the adoption of a single standard of laws, compulsory
within all jurisdictions of our planet. The ethology of all mankind must be shaped under the pattern of
that single legal standard. But the whole system is liable to crash if it is not founded on the rock bed
of the elemental principle that the majesty of the law must always be held supreme.

To keep inviolate this primary principle it is necessary that some of the existing social organs, moral
attitudes and habits of thinking should undergo reforms and overhauling, and many fixed traditional
ideas should be discarded to be replaced with more progressive ones and inconsonance with truth
and reason. Among these ideas are the wrong ones which are used as premises for the majority
opinion in this case.

The role of innovators and reformers is hard and often thankless, but innovation and reform should
continuously be undertaken if death by stagnation is to be avoided. New truths must be discovered
and new ideas created. New formulas must be devised and invented, and those outworn discarded.
Good and useful traditions must be preserved, but those hampering the progressive evolution of
cultured should be stored in the museum of memory. The past and the present are just stepping
stones for the fulfilment of the promises of the future.

Since the last decade of the nineteenth century, physical science had progressed by leaps and
bounds. Polonium and radium were discovered by Madam Curie, Rontgen discovered the X-ray, and
Rutherford the alpha, beta and gamma particles. Atom ceased to be the smallest unit of matter to
become an under-microscopic planetarian system of neutrons, protons, and electrons.

Ion exchangers are utilized to make of electrons veritable lamps of Aladdin. Plants are grown in plain
water, without any soil, but only with anions and cations. Sawdust has ceased to be a waste matter,
and from it is produced wood sugar, weighing one-half of the sawdust processed. Inter-stellar space
vacuum, almost absolute, is being achieved to serve ends that contribute to human welfare. Bacteria
and other microbes are harnessed to serve useful human purposes. The aspergillus niger is made to
manufacture the acetic to produce vinegar for the asking. The penicillum notatum and the bacillus
brevis are made to produce penicillin and tyrothricin, two wonder drugs that are saving many lives
from formerly lethal infections. DDT decimates harmful insects, thus checking effectively malaria, an
illness that used to claim more than one million victims a year in the world. The creation of synthetics
had enriched the material treasures offered to man by nature. Means of transportation are
developed to achieve supersonic speeds. Many scientific dreams are fast becoming marvelous
realities. Thus, science marches on. There is no reason why the administration of justice should not
progress onward, synchronized with the rhythm of general human advancement towards a better
future.

The fact that the majorities of the two chambers of Congress have without any qualm violated Article
XV of the Constitution and the majority of this Court, instead of granting the proper relief provided by
law, preferred to adopt the comfortable attitude of indifferent by-standers, creates a situation that
seems to be ogling for more violations of the fundamental law. The final results no one is in a
position to foresee.

Our vote is for the granting of the petition.

BRIONES, M., con quien esta conforme FERIA, M., disidente:

Por segunda vez en menos de un año nos Ilaman a decidiry arbitrar sobre una violacion de la
Constitucion — elcodigo fundamental de nuestro pais. A media dos del año pasado se trataba del
recurso interpuesto ante esta misma Corte Suprema por tres Senadores1 que se quejaban dehaber
sido privados injusta y arbitrariamente de su derecho a sentarse en el Senado de Filipinas y a
particular y votar en sus deliberaciones, con grave infraccion y detrimento de la Constitucion que
ampara tal derecho. Ahora esos mismos Senadores acuden de nuevo a esta Corte para quejarse de
otra violacion de la Constitucion, pero estavez no vienen solos: les acompañan otros cinco
miembros del Senado, diecisiete miembros de la Camarra de Representantes y tres jefes de
aagrupaciones o partidos politicos — Democratic Alliance, Popular Front y Philippine Youth Party.
Jose O. Vera es recurrente en su doble capacidad de miembro del Senado y Presidente del Partido
Nacionalista. De modo que los recurrentes suman veintiocho: 8Senadores, 17 Representantes y 3
particulares.2 Tienenun comun denominador, a saber: que son todos ciudadanos de Filipinas, y,
ademas, contribuyentes y electores.

Los recurridos son el Presidente y miembros de la Comision de Elecciones, el Tesorero de Filipinas,

el Auditor General y el Director del Buro de Imprenta.3

El objeto del recurso es recabar de esta Corte un mandamiento de prohibicion dirigigo a los
recurridos para que estos, sus agentes, empleados, subordinados y otras personas que actuen bajo
su superintendencia o en su nombre "se abstengan y desistan de dar los pasos tendentes haciala
celebracion de un plebiscito e eleccion general el 11 de Marzo, 1947, y de imprimir la resolucion
(sobre reformade los articulos 13.º y 14.º de la Constitucion), las balotas y otros papeles necesarios
en relacion con dicho plebiscito,y de desembolsar o de autorizar el expendio de fondos publicos
para dicho proposito."

Para la mejor comprension del asunto estimo necesariopublicar integro a continuacion el texto de la
Resolucion conjunta que contiene la propuesta reforma a la Constitucion, resolucion que constituye
la materia u objeto de la consulta popular en el referido plebiscito de 11 de Marzo, y es la misma
que en el lexico corriente de la prensa y del publico se conoce por resolucion sobre paridad o
igualdad de derecdhos constitucionales a favor de los americanos, esdecir, que concede a estos
iguales derechos que a los filipinosen la propiedad y cultivo de terrenos publicos, en la explotacion
de nuestros recursos naturales como bosques,minas, pesca y fuerza hidraulica, y en la propiedad y
operacion de utilidades publicas. He aqui su texto:
 RESOLUTION OF BOTH HOUSES PROPOSING AN AMENDMENT
TO THE CONSTITUTION OF THE PHILIPPINES
TO BE APPENDED AS AN ORDINANCE THERETO.

Resolved by the Senate and House of Representatives of the Philippines in joint session
assembled, by a vote of not less than three-fourths of all the Members of each House voting
separately, to propose, as they do hereby propose, the following amendment to the
Constitution of the Philippines to be appended as an Ordinance thereto;

ORDINANCE APPENDED TO THE CONSTITUTION

Notwithstanding the provisions of section one, Article Thirteen, and section eight, Article
Fourteen, of the foregoing Constitution, during the effectivity of the Executive Agreement
entered into by the President of the Philippines with the President of the United States on the
Fourth of July, nineteen hundred and forth-six, pursuant to the provisions of Commonwealth
Act Numbered Seven hundred and thirty-three, but in no case to extend beyond the third of
July, nineteen hundred and seventy-four, the disposition, exploitation, development, and
utilization of all agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces and sources of potential energy, and other
natural resources of the Philippines, and the operation of public utilities, shall, if open to any
person, be open to citizens of the United States and to all forms of business enterprise
owned or controlled, directly or indirectly, by citizens of the United States in the same
manner as to, and under the same conditions imposed upon, citizens of the Philippines or
corporation or associations owned or controlled by citizens of the Philippines.

This amendment shall be valid as a part of the Constitution when approved by a majority of
the votes cast in an election at which it is submitted to the people for their ratification
pursuant to Article XV of the Constitution.

Adopted,

(Sgd.) JOSE AVELINO

President of the Senate

(Sgd.) EUGENIO PEREZ

Speaker of the House of Representatives

We hereby certify that the foregoing Resolution was adopted by both Houses in joint session
assembled in the Hall of the House of Representatives on September 18, 1946.

(Sgd.) ANTONIO ZACARIAS

Secretary of the Senate

(Sgd.) NARCISO PIMENTEL

Secretary of the House of Representatives

Para comprobar la voluntad popular sobre la reforma constitucional propuesta el Congreso de

Filipinas ha aprobadola Ley No. 73 de la Republica que dispone y ordena la celebracion de un
plebiscito para el 11 de Marzo de esteano, provee a la forma de celebrarlo y consigna el
presupuesto necesario para sufragar los gastos del mismo. Siuna mayoria de los electores votare
afirmativamente, la reformaquedara ratificada y estara en vigor por un periodo de 28 años; en caso
contrario, quedara rechazada.

Los recurrentes alegan y sostiened que la resolucion conjuntade que se trate es ilegal y nula por no
haberse aprobadocon los votos de las tres cuartas-partes (3/4) del Congreso, conforme a lo provisto
en el Articulo XV de la Constitucion, a saber:

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 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.

Se alega que cuando se considero y aprobo la citada Resolucion conjunta el Senado se componia
actualmente de 24 miembros, es decir, el numero exacto fijado en la Constitucion, y la Camara de
Representantes de 96 miembros, es decir, dos menos que el numero señalado en la Constitucion,
pues does dimitieron despues de las elecciones, uno para aceptar un cargo en el ramo ejecutivo del
gobierno y otro para aceptar un nombramiento en el servicio diplomatico. Sin embargo, segun la
demanda de los recurrentes, en el Senado solo se permitio votar a 21 miembros, excluyen dose de
las deliberaciones y votacionfina l de la Resolucion a tres miembros, a saber; los Senadores Vera,
Diokno y Romero. De los referidos 21 miembros, votaron a favor de la Resolucion 16 y en contra 5;
asi que — arguyen los recurrentes — la Resolucion no quedo aprobada, por parte del Senado, con
el numero constitucionalde tres cuartas-partes (3/4) de los miembros, elcual debia ser 18.

En la Camara de Representantes, segun los recurrentes, solo se permitio votar a 88 miembros,

excluyen dose de las deliberaciones y votacion final de la resolucion a 8 miembros, a saber:
Representantes Alejo Santos y Jesus B. Lava, de Bulacan; Reps. Jose Cando y Constancio P.
Padilla, de Nueva Ecija; Reps. Amado M. Yuson y Luis Taruc, de Pampanga; Rep. Alejandro
Simpauco, de Tarlac; y Rep. Vicente F. Gustilo, de Negros Occidental. De los referidos 88
miembros votaron a favor de la Resolucion solo 68; asi que — arguyen los recurrentas — la
Resolucion tampoco quedo aprobada, por parte de la Camara, con el numero constitucional de tres
cuartas-partes (3/4) partes de sus miembros, el cual debia ser 72, por lo menos, y no 68, aun dando
por descontados los dos miembros que despues de las elecciones aceptaron cargos en otros
ramosdel gobierno.

Siendo inconstitucional y nula la Resolucion basica deque se trata, consiguientemente los

recurrentes tachantambien de inconstitucional e invalida la referida Ley de la Republica No. 73 que
convoca una eleccion general o plebiscito para el 11 de Marzo de 1947 a fin de someter alpueblo
para su ratificacion o repudio la enmienda constitucional propuesta, y que consigna la suma de
P1,000,000 para los gastos en que se hubiere de incurrir con motivo dela celebracion de dicho
plebiscito, entre habilitacion deprecintos electorales, pago de dietas de los inspectores y costo de la
a impresion, publicacion, fijacion y distribucion gratuita de copias de la propuesta enmienda en
ingles, español y otros dialectos del pais.

Los recurridos, despues de admitir ciertas alegacioneses enciales de la demanda y negar otras,
plantean las siguientes defensas especiales:

Primera defensa especial: que una ley o resolucion impresa (enrolled Act or Resolution) de ambas
Camaras del Congreso, adverada o autenticada con las firmas de los Presidentes de dichas
Camaras, es prueba concluyente deque la misma fue aprobada por el Congreso; que, en virtud del
respeto que se debe a un ramo igual y coordinado del gobierno, no es permisible una investigacion
judicial desi la misma a fue o no aprobada debida y propiamente por el Congreso; y que, por tanto,
esta Corte Suprema carecede jurisdiccion para conocer y enjuiciar los puntos suscitados por los
recurrentes en relacion con la validez y constitucionalidad de la resolucion en cuestion.

Empero si la primera defensa especial no fuese sostenida, los recurridos alegan, por via
de segunda defensa especial, que la resolucion controvertida fue aprobada a conlos votos de tres
cuartas-partes (3/4) de todos los miembros cualificados del Senado y de la Camara de
Representantes votando separadamente, en consonancia con el Articulo XV, apartado 1, de la
Constitucion, y que consiguientementela ley de la Republica No. 73 que ordena suplanteamiento
ante el pueblo para su ratificacion o desaprobacion, senala una fecha para la celebracion de
estaconsulta plebiscitaria y consigna fondos publicos para talfin, es valida y constitucional.

Consta en autos una estipulacion de hechos concertadaentre las partes, pero no se extracta aqui
para no alargar innecesariamente esta disidencia, pero se hara particular referencia a ella mas
adelante a medida que las exigenciasde la argumentacion lo demanden.

Es preciso hacer constar que los abogados de ambas parteshan hecho cumplida justicia a la
tremenda importancia del asunto haciendo extensos estudios y pacientes investigaciones de la
jurisprudencia pertinente, en particular la americana, teniendo en cuenta la influencia profunda y
decisiva de aquel pais en nuestras ideas politicas y constitucionales en virtud de la historica y
estrecha convivenciade casi medio siglo.

Es que la cosa no era para menos. Puede decirse, sinexageracion, que excepto en cuatro
momentos culminantes de su historia — el primer grito de rebelion contra España en Agosto de
1896, la ruptura de hostilidades contra Americaen Febrero de 1899, la aceptacion de la Ley de
Independencia en el plebiscito nacional de 1935, y la guerra contra el Japon en 1941 — en ningun
momento, en los ultimos 60 años, ha sido Ilamado el pueblo filipino a rendiruna decision tan
importante, de trascendencia e implicacionestan graves, tan tremendas, como la que tiene que
hacer en el plebiscito de 11 de Marzo proximo con motivode la Resolucion congresional discutida en
el presente asunto.

Es una de esas decisiones que hacen historia; que parabien o para mal sacuden los cimientos de
un pais tal quesi fuese un fenomeno cosmico; que determinan el curso desu existencia y deytinos
nacionales; que deciden, en una palabra, de la suerte de generaciones ya existentes y
degeneraciones que no han nacido todaviaa. Es una de esas decisiones que para hacerla los
pueblos deben hincarse humildemente de rodillas, de cara al cielo, pidiendo al Dios de los pueblos y
naciones la gracia de una salvadora inspiracion de Su infinita sabiduria . . ..

II

Para los efector de una amplia perspectiva historica quepermita destacar en toda su plenitud los
contornos de losformidables "issues" o puntos constitucionales debatidos en el presente asunto,
parece conveniente que repasemos, siquiera brevemente (en las notas marginales lo que no
cabeen el mismo texto de esta disidencia),4 los preceptos basicos de la Constitucion que se trate de
reformar conla Resolucion congresional de que tantas veces se ha hechomerito. Helos aqui:

ARTICLE XIII. — CONSERVATION AND UTILIZATION OF NATURAL RESOURCES.

SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other
natural resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens,
 subject to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for another twenty-five years, except as to
water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and the limit
of the grant.

ARTICLE XIV. — GENERAL PROVISIONS

xxx xxx xxx

SEC. 8. No franchise, certificate, or any other form of authorization for the operation of a
public utility shall be granted except to citizens of the Philippines or to corporations or other
entities organized under the laws of the Philippines, sixty per centum of the capital of which
is owned by citizens of the Philippines, nor shall such franchise, certificate, or authorization
be exclusive in character or for a longer period than fifty years. No franchise or right shall be
granted to any individual, firm, or corporation, except under the condition that it shall be
subject to amendment, alteration, or repeal by the Congress when the public interest so
requires.

Como queda dicho, la reofrma propuesta es en el sentidode que, no obstante lo dispuesto en los
preceptos arribatranscritos, "durante la efectividad del Convencio Ejecutivo perfeccionado entre el
Presidente de Filipinas y el Presidente de los Estados Unidos el 4 de Julio de 1946, al tenorde las
disposiciones de la Ley del Commonwealth No. 733, pero que en ningun case se extendera mas
alla del 3 de Julio de 1974, la disposicion, explotacion, desar rollo y utilizacionde todos los terrenos
agricolas, forestales y minerales de dominio publico, de aguas, minerales, carbon, petroleo y otros
minerales petroliferos, de todas las fuerzasy fuentes de energia potencial, asi como de otros
recursos de Filipinas, y la operacion de utilidades publicas, si abiertos para cualguier persona,
quedan abiertos para los ciudadanos de los Estados Unidos y para todas las formas de negocio y
empresa de la propiedad o controladas, directao indirectamente, por ciudad años de los Estados
Unidos, de la misma manera y bajo las mismas condiciones impuestasa los ciudadanos de Filipinas
o a las corporaciones o asociaciones de la propiedad o controladas por ciudadanos de Filipinas
(Resolucion conjunta del Congreso filipino, supra).

Podemos tomar conocimiento judicial — pues, sobre ser historia contemporanea, se trata de las
labores y procesos deliberativos de la misma Asamblea Constituyente — de quelos preceptos
capitales arriba transcritos constituyen la expresion acabada de toda la madurez de juicio, de toda
laprudencia y sabiduria de que eran capaces no solo los autores de la Constitucion y los Delegados
que la aprobaron, sino el pueblo filipino que la ratifico en el correspondiente plebiscito nacional
convocado al efecto. En pocas resoluciones ha habido tanta firmeza y tan fuerte unanimidadentre
nuestros partidos politicos y sus caudillos como enesa recia y constructiva afirmacion de
nacionalismo. Nadamejor, creo yo, que las siguientes palabras para definir elespiritu, la filosofia que
informa esas provisiones:

This provision of the Constitution has been criticized as establishing the outworn Regalian
doctrine which, it is suggested, may serve to retard the economic development of the
Philippines. The best encomium on this provision is probably the very criticism launched
against it. It is inconceivable that the Filipinos would liberalize the acquisition, disposition and
exploitation of our natural resources to the extent of permitting their alienation or of depriving
the people of this country of their heritage. The life of any nation depends upon its patrimony
 and economic resources. Real freedom, if it is to be lasting, must go hand in hand with
economic security, if not economic prosperity. We are at most usufructuaries of ourdomains
and natural resources and have no power to alienate them even if we should want to do so.
They belong to the generations yet unborn and it would be the height of folly to even think of
opening the door for their untrammelled disposition, exploitation, development or utilization to
the detriment of the Filipinos people. With our natural resources in the hands of foreigners
what would be there left except the idealism of living in a country supposedly free, but where
freedom is, after all, an empty dream? We would be living in a sumptuous palace that it not
ours! We would be beggars in our own homes, strangers in our own land!

Friendship and amity towards all nations are compatible with the protection of the legitimate
interests of the Filipino people. There is no antagonism or hostility towards foreigners but
sane nationalism and self-protection which every country of the world is practising today in
the interest of self-preservation. (The Three Powers of Government, by Laurel, pp. 117-118.)

Los criticos de la enmienda constitucional propuesta pueden discutir libremente, como cumple a los
ciudadanos de un pais democratico, los meritos y demeritos de lamisma. Pueden combatirla con
toda clase de razones — morales, politicas, economicas, financieras, internacionales, y hasta de
decencia — y naturalmente defenderla tambiensus partidarios desde todos los angulos. Podrian los
opositoreshacer una minuciosa diseccion de su fraseologia yacaso hallar en sus repliegues
peligrosas implicaciones, posibles riesgos, como en ese par de adverbios "directa o indirectamente",
a cuyo socaire podrian acogerse corporacioneso asociaciones extranjeras controladas solo
indirectamente por ciudadanos americanos para concurrir en la explotacion de nuestros terrenos
publicos y recursos naturales, y en la operacion de utilidades publicas. Todo estolo pueden hacer, y
algo mas. Pero es obvio, elemental quesemejante discusion no compete a esta Corte Suprema,
sinoen todo caso a otros poderes constituidos.

Nosotros no estamos para determinar y enjuiciar labondad o maldad de la enmienda propuesta. Lo

unico quenos incumbe hacer, ya que la cuestion se halla propiamente planteada ante nosotros, es
resolver si la enmienda ha sido aprobada por el Congreso de acuerdo con el mandato expreso de la
Constitucion en materia de enmiendas; si losrequisitos que la Constitucion señala para poder
enmendarla — requisitos que son mandatorios, categorica menteimperativos y obligatorios — se
han cumplido o se han violado. Como se dijo bien en el asunto de Gray vs.Childs ([1934], 156 So.,
274, 279), ". . . No podemos decir queel estricto requerimiento relativo a las enmiendas se puede
renunciar a favor de una buena enmienda e invocar encontra de otra mala. . . . No compete a los
tribunales el determinar cuando una enmienda propuesta es sabia y cuando no lo es. Los tribunales
nada tienen que ver conla sabiduria de la politica. Pero es deber de los tribunales, cuando se les
pide que lo hagan, el determinar si o no el procedimiento adoptado para la aprobacion de la
enmiendaes el señalado por los terminos de la ley organica.

Todo lo que se lha dicho hasta aqui para poner de relievela filosofia de nuestra Constitucion en
materia de recursos naturales y utilidades publicas, se ha dicho no como expresion de un criterio
propio, sino tan solo para subrayar todala gravedad, toda la densidad del asunto, y prevenir entodo
caso los peligros de una rutinaria y complacienteliviandad. Como tambien se dijo en el citado asunto
deGray vs. Childs, "la enmienda de la ley organica del Estado o nacion no es una cosa para ser
tomada ligeramente, ni para ser hecha de lance o al azar. Es una cosa seria. Cuando la enmienda
es aprobada, viene a ser parte de laley fundamental del pais y puede significar el bienestar
omaldicion de las generaciones de la nacion donde se haceparte del codigo fundamental."

Este pronunciamiento adquiere todo el valor y toda la resonancia de una consigna en el presente
caso en que lareforma propuesta afecta vitalisimamente al patrimonionacional del pueblo filipino.
¿No son los recursos naturalesy las utilidades publicas el tesoro de una nacion, labase que sustenta
su existencia, la espina dorsal de sueconomia? Por tanto, jamas se podra exagerar el celo, la
vigilancia que el pueblo y sus organos naturales ejercenpara que las salvaguardias impuestas por la
misma Constitucionen relacion con el proceso y tramitacion de todaenmienda constitucional se
cumplan y observen con el maximo rigor.

Aqui no caben excusas ni subterfugios. Ni siquiera cabeescudarse tras la doctrina de la separacion

de poderes quela mayoria de esta Corte invoca para justificar su inaccion, su pasividad, su politica
de "manos fuera", alegando que el presente asunto es coto vedado para nos otros, algo quecae
fuera de nuestra jurisdiccion, eso que en derecho politico y constitucional se llama materia politica
no-justiciable.

III

La mayoria rehusa asumir jurisdiccion sobre el presente caso porque dice que versa sobre una
cuestion politica, ylas cuestiones politicas caen fuera de la competencia de los tribunales de justicia.
Creo que esto es un error, dicho seacon todos los respetos debidos a mis ilustres compañeros que
sostienen tal opinion. ¿Hay acaso algun documento mas politico que la Constitucion? Si la opinion
de lamayoria fuese valida y acertada, practicamente ninguna violacion de la Constitucion podria ser
enjuiciada por los tribunales, pues cual mas, cual menos, casi todas las
transgresionesconstitucionales, sobre todo las que comete elpoder legislativo o el poder ejecutivo,
tienen caracter politico. Bajo esa opinion la Constitucion seria una letramuerta, un simple pedazo de
papel: los poderes constituidos, los individuos que los componen, podrian infringirim punemente la
Constitucion sin que ningun arbitro constitucional pudiera intervenir ordenadamente para restaurarla
suprema majestad de la ley fundamental violada. Esclaro que esto podria conducir facilmente al
caos, a la anarquia, a la revolucion, dependiendo solo el resultado de lamayor o menor docilidad del
pueblo, del grado de elasticidad politica de las masas. Y es claro que ninguno puedequerer este
triste destino para nuestro pais.

Creo sinceramente que una mejor y mas correcta evaluacion de nuestro sistema de gobierno que
esta esencial mentecalcado en el americano, es que bajo la teoria relativa de las eparacion de
poderes, ningun poder es superior al pueblo cuya voluntad esta encarnada en la Constitucion. Los
poderes no son mas que agentes, mandatarios, servidores: el pueblo es el amo, el mandante, el
soberano. Y el pueblo ordena y manda por medio de la Constitucion — esta es suvoz el verbo
hecho carne politica y social, el soplo vital quetraduce y transmuts su espiritu en postulados
esenciales deregulacion y gobierno.

Todo eso esta bien, no puede haber seria objecion a ello,dicen los sostenedores absolutistas de la
teoria de la sedparacion de poderes. Pero se pregunta: ¿quien señala lavoluntad del pueblo tal
como esta plasmada en la Constitucion? ?Quien es el profeta que desciende del Sinai para revelar
las tablas de la ley? ¿Quien ha de arbitrar en los conflictos constitucionales, o quien ha de decidir
los litigios propiamente planteados en que se ventilan una infraccion de la Constitucion? ¿Hay un
peligroso vacio en nuestro mecanismo constitucional, o por el contrario, los resorteestan todos bien
situados, capaces de operar y funcionarade cuada y eficientemente? Esto es precisamente
el busilis, la cuestion batallona.

No puede haber duda en la contestacion a tales preguntas. Bajo nuestro sistema de gobierno el
poder judiciales el llamado a señalar, a interpretar la ley; y en los conflictoso transgresiones
constitucionales esta Corte Suprematiene la ultima palabra, le compete el arbitraje supremoy final.
Bajo nuestra mecanica constitucional, igual quebajo la americana, se da la aparente paradoja de
que la superior facultad, el supremo negocio de interpretar la voluntad del pueblo tal como esta
expresada mas o menos permanentemente en la Constitucion, no corresponde propiamentea
ninguno d e los poderes electivos, los que se renuevanperiodicamente, sino al poder que si bien es
denombramiento en su origen, tiene, sin embargo, sentido deperpetuidad, quiero decir, es vitalicio
en la complexion y funcion de los individuos que los componen — el poder judicial. La sabiduria
peculiar, la originalidad del sistemaconsiste precisamente en eso: en haber alojado el supremo
arbitraje con relacion a los conflictos y transgresiones constitucionales en un poder del Estado al
cual deliberadamentese le ha dotado de un clima psicologico y moral el maspropicio posible a la
objetividad y desasimiento de lasdisputas politicas y discordias civiles, situandosele por encimade
los vaivenes de la politica al uso y las veleida desde la suerte electora. "Esto es lo que va implicto
en la expresion supremacia judicial, que propiamente es la facultad de revision judicial bajo la
Constitucion" (Angara contra Comision Electoral, 63 Jur. Fil., 171).

The very essence of the American conception of the separation of powers is its insistence
upon the inherent distinction between law-making and law-interpreting, and its assignment of
the latter to the judiciary, a notion which, when brought to bear upon the Constitution, yields
judicial review." (Corwin, The Twilight of the Supreme Court, p. 146.)

En el famoso asunto de Marbury vs. Madison, supra, el Tribunal Supremo de los Estados Unidos,
por boca de sugran Chief Justice John Marshall, en terminos inequivocos definio y explico las
facultades de la judicatura para poneren vigor la Constitucion como la suprema ley del pais, y
declaro que es terminantemente de la competencia y deberdel departamento judicial el decidir cual
es la ley querige.

The reasoning of Webster and Kent is substantially the same. Webster says: "The
Constitution being the supreme law, it follows of course, that every act of the Legislature
contrary to the law must be void. But who shall decide this question? Shall the legislature
itself decide it? If so, then the Constitution ceases to be legal and becomes only a moral
restraint for the legislature. If they, and they only, are to judge whether their acts be
conformable to the Constitution, then the Constitution is advisory and accessory only, not
legally binding; because, if the construction of it rest wholly with them, their discretion, in
particular cases, may be in favor of very erroneous constructions. Hence the courts of law,
necessarily, when the case arises, must decide upon the validity of particular acts." Webster,
Works, Vol. III, 30. (Willoughby on the Constitution of the United States, Vol. 1, 2d edition,
pp. 4, 5.)

En el citado asunto de Angara contra Comision Electoral dijimos tambien lo siguiente:

. . . Y la judicatura, a su vez, con el Tribunal Supremo por artbitro final, frena a con
efectividad a los demas departament of en elejercicio de su facultad de determinar la ley, y
de aqui que pueda declarar nulos los actos ejecutivos y legislativos que contravengan la
Constitucion.

Esta doctrina reafirmo en el asunto de Planas contra Gil (67 Phil., 62), a saaber:

. . . As far as the judiciary is concerned, which it holds' neither the sword nor the purse' it is
by constitutional placement the organ called upon to allocate constitutional boundaries, and
to the Supreme Court is entrusted expressly or by necessary implication the obligation of
determining in appropriate cases the constitutionality or validity of any treaty, law, ordinance,
or executive order or regulation. (Section 2 [1], Art. VIII, Constitution of the Philippines.) In
this sense and to this extent, the judiciary restrains the other departments of the government
and this result is one of the necessary corollaries of the "system of checks and balances" of
the government established.
No es que con esto el poder judicial assume un complejode superioridad sobre los otros poderes del
Estado, no. Setrate simplemente de que, dentro de las limitaciones de todacreacion humana,
alguien tiene que arbitrar y dirimir losconflictos y las transgresiones a gue puede dar lugar la
Constitucion, y se estima que el poder judicial, pro la razonde su ser y de sus funciones, es el mas
llamado a ser esearbitro. Se trate de una propia y graciosa inhibicion delos otros poderes en virtud
de una necesidad impuesta porunas teorias y practicas de gobiernio que han resistido la prueba del
tiempo y el choque con la realidad y la experiencia. En mi disidencia en el asunto de
Vera contra Avelino (77 Phil., 192), hablando sobre este particular dijelo siguiente y lo reitero ahora,
a saber:

En parte, el argumento expuesto es correcto y acertado. No sepuede discutir que los tres
poderes del Estado son iguales e independientesentre si; que ninguno de ellos es superior
al otro, mucho menos el poder judicial que entre los tres es el menos fuerte y elmas precario
en medios e implementos materiales. Tampoco se puede discutir que bajo la Constitucion
cada poder tiene una zona, una esferade accion propia y privativa, y dentro de esa esfera un
cumulode facultades que le pertenecen exclusivamente; que dentro de esaesfera y en el uso
de esas facultades cada poder tiene absoluta discreciony ningun otro poder puede controlar
o revisar sus actos so pretexto de que alguien los cuestiona o tacha de arbitrarios, injustos,
imprudentes o insensatos. Pero la insularidad, la separacion llegasolo hasta aqui. Desde
Montesquieu que lo proclamo cientificamente hasta nuestros dias, el principio de la
separacion de poderes hasufrido tremendos modificaciones y limitaciones. El consenso
doctrinal hoy es que la teoria es solo relativa y que la separacionde poderes queda
condicionada por una mecanica constitucional — lamecanica de los frenos y cortapisas.
(Willoughby, On the Constitution of the United States, tomo 3, pags. 1619, 1620, 2.ª edicion.)
Como queda dicho, cada poder es absoluto dentro de la esfera quele asigna la Constitucion;
alli el juego de sus facultades y funcionesno se puede coartar. Pero cuando se sale y
extravasa de esa esferainvadiendo otras esferas constitucionales, ejerciendo facultades
queno le pertenecen, la teoria de la separacion ya no le ampara, la Constitucion que es
superior a el le sale al encuentro, le restringe uy leachica dentro de sus fronteras,
impidiendo sus incursiones anti-constitucionales. La cuestion ahora a determinar es si bajo
nuestrosistema de gobierno hay un mecanismo que permite restablecer eljuego normal de la
Constitucion cuando surgen estos desbarajustes, estos conflictos que podriamos llamar de
fronteras constitucionales; tambien es cuestion a determinar si cuando surgen esos
conflictos, un ciudadano sale perjudicado en sus derechos, el mismo tiene algun remedio
expedito y adecuado bajo la Constitucion y las leyes, y quien puede concederle ese
remedio. Y con esto llegamos a la cuestion basica, cardinal en este asunto.

Nuestra opinion es que ese mecanismo y ese remedio existen — son los tribunales de
justicia.

La mayoria no define en su decision lo que llama cuestion politica no-justiciable ni las maaterials o
casos que caen dentro de su significado. "The difficulty lies" — dice la ponencia — "in determining
what matters fall within the meaning of political question. The term is not susceptible of exact
definition, and precedents and authorities are not always in full harmony as to the scope of the
restrictions, on this ground, on the courts to meddle with the actions of the political departments of
the government." Pero razonando por analogia cita un precedente, una autoridad — el caso de
Coleman vs. Miller decidido no hace muchos años por la Corte Suprema Federal de los Estados
Unidos. La mayoria cree que este es el caso mas semejante al que nos ocupa. Creo que la mayoria
padece error: el caso de Coleman contra Miller es precisamente un buen argumento en favor del
recurso.

Compendiado el caso es como sigue: En Junio, 1924, el Congreso de los Estados Unidos propuso
una reforma ala Constitucion, conocida por "Child Labor Amendment" (enmienda sobre el trabajo
infantil). En Enero, 1925, la Legislatura del Estado de Kansas adopto una resolucion rechazandola
enmienda y una copia certificada de la resolucionse envio al Secretario de Estado de los Estados
Unidos. En Enero, 1937, o sea 12 años despues, una resolucion conocida como "Resolucion
Concurrente del Senado No. 3" se presento en el Senado del Estado de Kansas pararatificar la
propuesta enmienda. Habia 40 Senadores. Alconsiderarse la resolucion 20 Senadores votaron en
favor y 20 Senadores en contra. El Teniente Gobernador, que era entonces el Presidente del
Senado en virtud de la Constitucion estatal, emitio su voto en favor de la resolucion, rompiendo asi
el empate. La resolucion fue posteriormente adoptada por la Camara de Representantes de Kandas
mediante una mayoria de los votos de sus miembros.

Fued entonces cuando se interpuso ante la Corte Suprema de Kansas un recurso

de mandamus por los 20 Senadores adversos a la resolucion y por otros 3 miembros de la
Camarade Representantes. El objeto del recurso era (a) compeler al Secretario del Senado a borrar
el endoso favorable de la resolucion y poner en su lugar las palabras "no ha sido aprobada"; (b)
recabar la expedicion de un interdicto contra los oficiales del Senado y Camara de Representantes
prohibiendo les que firmaran la resolucion y contra el Secretario de Estado de Kansad prohibiendole
que autentic aradicha resolucion y la entregara la Gobernador. La solicitud cuestionaba el derecho
del Teniente Gobernadora emitir su voto decisivo en el Senado. Tambien se planteabaen la solicitud
el hecho de que la resolucion habiasido rechazada originariamente y se alegaba, ademas,
quedurante el periodo de tiempo comprendido entre Junio,1924, y Mayo, 1927, la enmienda habia
sido rechazada porambas Camaras de las Legislaturas de 26 Estados y solose habia ratificado en 5
Estados, y que por razon de dicho rechazamiento y por no haberse ratificado dentro de untiempo
razonable la enmienda habia perdido su validez y vitalidad.

La Corte Suprema de Kansas hallo que no habia ninguna disputa sobre los hechos, asumio
competencia sobre el casoy sostuvo que el Teniente Gobernador tenia derecho a emitirvoto
decisivo, que la proyectada enmienda conservabasu vitalidad original a pesar del tiempo
transcurrido, y quela resolucion, "habiendo sido aprobada por la Camara de Representantes y por el
Senado, el acto de ratificacion dela propuesta enmienda por la Legislatura de Kansas erafinal y
complete." Consiguientemente el recurso de mandamus fue denegado.

Elevado el asunto en casacion para ante la Corte Suprema Federal, esta asumio jurisdiccion sobre
el caso, conla concurrencia y disidencia de algunos Magistrados que opinaban que el recurso debia
rechazarse de plano, sin masceremonias, por la razon, segun los disidentes, de que los recurrentes
no tenian personalidad ni derecho de accion para pedir la revision de la sentencia de la Corte
Supremade Kansas, y porque ademas se trataba de una cuestion puramente politica, por tanto no-
justiciable. Bajo la ponenciade su Presidente el Sr. Hughes, la Corte Suprema Federal conocio del
caso a fondo, discutiendo y resolviendo las cuestiones planteadas. He aqui sus palabras: "Our
authority to issue the writ of certiorari is challenged upon the ground that the petitioners have no
standing to seek to have the judgment of the state court reviewed and hence itis urged that the writ
of certiorarishould be dismissed.We are unable to accept that view." Esto viene a ser comouna
replica a las siguientes palabras de los disidentes: "It is the view of Mr. Justice Roberts, Mr. Justice
Black, Mr. Justice Douglas and myself (Mr. Justice Frankfurter) that the petitioners have no
standing in the Court." Delo dicho resulta evidente que la Corte Federal no adoptola actitud de
"manos fuera" (hands off), sino que actuo positivamente sobre el caso, encarandolo.

La decision consta de tres partes. La primera parte, que es bastante extensa, esta consagrada
enteramente adiscutir la cuestion de la jurisdiccion de la Corte. Ya hemosvisto que esta cuestion se
ha resuelto enteramente enfavor de la jurisdiction, en virtud de las razones luminosas que alli se
explanan y que no reproduzco por no ser necesario y para no alargar indebidamente esta
disidencia. La segunda parte es bien breve, apenas consta de dos parrafos. Se refiere a la cuestion
de si el voto del Teniente Gobernador, que rompio el empate, era o no valido. La Corte nolo
resuelve, por que dice que sus miembros se dividieron porigual sobre si era una cuestion politica y,
por tanto, nojusticiable. La tercera parte, tan extensa como la primera, esta dedicada a estudiar y
discutir las siguientes proposiciones :(a) Si habiendo sido rechazada originariamentela enmienda,
una ratificacion posterior podia validamente dejar sin efecto dicho rechazamiento y tomarse como
unaratificacion legal al tenor de la Constitucion; (b) si ellargo tiempo transcurrido entre el
rechazamiento y la ratificacion — unos 13 años — no habia tenido el efecto de darcaracter final a la
repudiacion de la enmienda, causando estado juridico definitivo.

El analisis que hace el ilustrado ponente de las cuestiones planteadas es muy interesante y desde
luego acabado. Se estudian y comentan luminos amente los precedentes. Sobre la cuestion de si el
rechazamiento de unaenmienda propuesta impide que la misma sea ratificada posteriormente, se
puntualiza lo siguiente: que el articulo V de la Constitucion Federal sobre enmienda esta fraseadoen
terminos positivos, es decir, habla de ratificacion y node rechazamiento, y que por tanto "el poder
para ratificarlo confiera al Estado la Constitucion, y que, como poder ratificante, continua y persiste,
a pesar de un previo rechazamiento. "Luego la Corte dice, examinando los precedentes, que el
Congreso, en el ejercicio de su control sobrela promulgacion de las enmiendas a la Constitucion, ha
resuelto esta cuestion repetidas veces en el sentido indicado, esto es, considerando inefectivo el
previo rechazamientofrente a una positiva ratificacion; y la Corte concluye que esta accion del
Congreso es valida, constitucional; por consiguiente, los tribunales no estan autorizados para
revisarla. Es en este sentido, creo yo, como la Corte dice que se trate de una cuestion politica no-
justiciable, es decir una cuestion que cae dentro de la zona constitucional exclusion del Congreso;
por tanto, se trate deuna accion valida, constitucional. Pero no hay nada enesa decision que diga, o
permita inferir, que cuando el Congreso viola un mandato expreso de la Constitucion, como en el
caso que nos ocupa, los tribunales no pueden intervenir, bajo el principio de la supremacia
judicial entratandose de interpretar la Constitucion, para resolver el conflicto o enjuiciar la
transgresion, y conceder el remedio propiamente pedido. En otras palabras, en el caso de
Coleman contra Miller la Corte Suprema Federal hallo que el Congreso, al declarar valida la
ratificacion de la enmienda constitucional sobre trabajo infantil (Child labor), no habia infringibo el
articulo V de la Constitucion, sobre enmiendas, y la Corte lo razona diciendo, con la vista delos
precedentes, que el referido articulo V habla de ratificacion y no de rechazamiento, y que, por
tanto, "el poderpara ratificar continua y persiste a pesar de un previo rechazamiento." De suerte
que, en realidad de verdad, no escierto que la Corte Suprema Federal declaro injusticiablela
materia, pues ¿que mejor prueba de justiciabilidad que ese dictum categorico, positivo y
terminante?

Sobre la proposicion de si el largo tiempo transcurrido entre el rechazamiento y la ratificacion —

unos 136 años — no habia tenido el efecto de dar caracter final a la repudiacion de la enmienda,
causando estado juridico definitivo, la Corte Suprema Federal fallo que no, es decir, declarovalida la
ratificacion no obstante dicho lapso de tiempo, aduciendo razones muy atinadas, entre ellas la de
que las condiciones de caracter moral, medico, social y economico que aconsejaban la prohibicion
del trabajo infantil en las fabricas eran tan validas y existentes, si no mas, cuandose sometio la
enmienda por primera vez para su ratificacion como 13 años despues. Y luego la Corte cita
autoridades y precedentes en apoyo de su conclusion, entre ellosel caso tipico y decisivo de
Dillon vs. Glass (256 U.S., 368; 65 Law.ed., 994; 41 Sup.Ct., 510). En este caso la Cortedeclaro que
el Congreso, al proponer una enmienda a la Constitucion, pueded fijar un tiempo razonable para su
ratificacion, y sostuvo la accion del Congreso al disponer enla proyectada 18.ª Enmienda que la
misma seria ineficaza menos que se ratificase dentro de siete años.

Ahora bien, en el caso de Coleman contra Miller ocurre todo lo contrario: el Congreso no habia
fijado ningun plazopara la ratificacion. En vista de esto, los recurrentes pretendian que la Corte
supliera la omision del Congreso declarandolo que era tiempo razonable, teniendo en cuentalos
precedentes judiciales y el precedente congresional de 7 años ya sostenido en el caso citado de
Dillon contra Glass; y que desde luego el periodo de 13 años era demasiado largo para ser
razonable. La Corte Suprema dijo que no, queno eran los tribunales los que debian fijar ese tiempo
razonable; que en esta cuestion entraban muchos factores denaturaleza varia y compleja —
politicos, economicos y sociales — que solo el Congreso estaba en condiciones de determinar ya
mediante la correspondiente legislacion como enel caso de la 18.ª Enmienda, ya en cada caso
concreto deratificacion al ejercer su control sobre la promulgacion de las enmiendas. Ahora bien,
pregunto: ¿no es esto un dictum judicial? ¿no es esto justiciar? ¿no esta aqui la Corte Suprema
Federal sentandose en estrados y emitiendo judicialmente su opinion sobre una materia juridica y
constitucional sometida a su consideracion? En realidad, puede decirse que la unica cuestion que la
Corte ha dejado de resolver es la validez o nulidad del voto decisivo del Teniente Gobernador, por
la razon de que sobre este punto, segun se dice en la misma decision, la opinion del Tribunal
estaba igualmente dividida. Todas las demas cuestiones han sido enjuiciadas, resueltes, y esta
accion dela mayoria, asumiendo plena jurisdiccion sobre el caso y las materias en el discutidas, es
lo que ha motivado la disidencia de 4 Magistrados los Sres. Black, Roberts, Frankfurter y Douglas.
En efecto, estos disidentes no disimulansu desagrado al ver que la Corte asume en el caso,
siquier implicitamente, el poder de interpretacion judicial, y aunvan mas alla — expresan un notorio
desencanto al ver que la Corte "trata el proceso enmendatorio provisto por la Constitucion, como
sujeto a interpretacion judicial en algunos respectos, y en otros sujeto a la autoridad final del
Congreso", y al ver tambien que en la decision "no hay desaprobacion de la conclusion establecida
en el asunto de Dillon contra Glass, de que la Constitucion requiere tacitamente que una enmienda
propiamente sometida debe darsepor muerta, a menos que se ratifique dentro de un tiempo
razonable." Es decir, los Magistrados disidentes esperaban que la Corte revocase y abrogase lo
hecho por ella en elcitado asunto de Dillo contra Glass en donde la Corte, envez de abstenerse de
conocer del caso por tratarse en el, segun los disidentes, de materia politica no-justiciable, ejercio
plena jurisdiccion sobre el mismo asumiendo supoder tradicional de interpretar la Constitucion y
declarando valida la lay del Congreso que fijaba un plazo de7 años para la ratificacion de la 18.ª
Enmienda. No puedo resistir a la tentacion de reproducir las mismas palabrasde la disidencia: ellas,
mejor que todo lo que yo pueda decir, demuestran de modo inconcuso las irreconciliables
diferencias de criterio entre la mayoria, representada porel ilustre ponente Sr. Hughes, y los
disidentes, pues mientraspor un lado el ponente justicia decididamente el caso considerando,
discutiendo y resolviendo todas las cuestionesplanteadas, menos la cuestion del voto del Teniente
Gobernador, citando profusamente autoridades y precedentes, los disidentes, en su opinion,
preconizan una actitudde absoluta abstencion, de "manos fuera" (hands off), portratarse, segun
ellos, de una materia politica no-justiciable que cae exclusivamente bajo el control del Congreso. He
aqui las palabras de los disidentes:

. . . To the extent that the Court's opinion in the present case even impliedly assumes a
power to make judicial interpretation of the exclusive constitutional authority of Congress
over submission and ratification of amendments, we are unable to agree.

The State court below assumed jurisdiction to determine whether the proper procedure is
being followed between submission and final adoption. However, it is apparent that judicial
review of or pronouncements upon a supposed limitation of a "reasonable time" within which
Congress may accept ratification; as to whether duly authorized State officials have
proceeded properly in ratifying or voting for ratification; or whether a State may reverse its
action once taken upon a proposed amendment; and kindred questions, are all consistent
only with an ultimate control over the amending process in the courts. And this must
inevitably embarrass the course of amendment by subjecting to judicial interference matters
that we believe were intrusted by the Constitution solely to the political branch of
government.

The Court here treats the amending process of the Constitution in some respects as subject
to judicial construction, in others as subject to the final authority of the Congress. There is no
disapproval of the conclusion arrived at in Dillon vs. Glass, that the Constitution impliedly
requires that a property submitted amendment must die unless ratified within a "reasonable
 time." Nor does the Court now disapprove its prior assumption of power to make such a
pronouncement. And it is not made clear that only Congress has constitutional power to
determine if there is any such implication in article 5 of the Constitution. On the other hand,
the Court's opinion declares that Congress has the exclusive power to decide the political
questions of whether a State whose legislature has once acted upon a proposed amendment
may subsequently reverse its position, and whether in the circumstances of such a case as
this, an amendment is dead because an "unreasonable" time has elapsed. No such division
between the political and judicial branches of the government is made by article 5 which
grants power over the amending of the Constitution to Congress alone. Undivided control of
that process has been given by the article exclusively and completely to Congress. The
process itself is "political" in its entirety, from submission until an amendment becomes part
of the Constitution and is not subject to judicial guidance, control or interference at any point.

Since Congress has sole and complete control over the amending process, subject to no
judicial review, the views of any court upon this process cannot be binding upon Congress,
and in so far as Dillon vs. Glass attempts judicially to imposed a limitation upon the right of
Congress to determine final adoption of an amendment, it should be disapproved. . . .
(Coleman vs. Miller, 122 A.L.R., 695, 708, 709.)

La distribucion de los votos con relacion a las cuestiones planteadas en el referido asundo de
Coleman vs. Miller esalgun tanto confusa, como han podido notar los mismos comentaristas; asi
que necesita de alguna explicacion. Escierto que no suscriben la ponencia mas que 3 Magistrados,
a saber: el ponente Sr. Hughes y los Sres. Stone y Reed, pero en cuanto a la jurisdiccion plena que
la Corte asumio sobre el caso y la materia hay que añadir los votos de los Sres. McReynolds y
Butler. Estos dos ultimos no soloconcurrian implicitamente en la accion de la Corte al enjuiciarel
caso, sino que inclusive opinaban que debia concederse el recurso, esto es, que debia anularse la
ratificacion tardia de la Enmienda sobre Trabajo Infantil (Child Labor) hecha por la Legislatura de
Kansas. De modo queen cuanto al "issue" de la jurisdiccion, la justiciabilidad del caso, la votacion
era de 5 contra 4 — por la jurisdiccion,la justiciabilidad, el ponente Sr. Hughes, y los Magistrados
Sres. Stone, Reed, McReynolds y Butler; por la actitud de absoluta abstencion, de "manos fuera"
(hands off), los Magistrados Sres. Black, Frankfurter, Roberts y Douglas.

Repito lo dicho mas arriba: el caso de Coleman vs. Miller, en vez de ser una autoridad a favor de los
recurridos, juntamente con el caso de Dillon vs. Glass constituyen precedentes decisivos en la
jurisprudencia federal americana a favor de los recurrentes.

Pero si la jurisprudencia federal milita en favor de latesis de que tenemos jurisdiccion para enjuiciar
y decidirel presente caso, en el ejercicio de nuestras supremas funciones como interprete de la
Constitucion bajo el principio firmemente establecido de la supremacia judicial en asuntos
propiamente planteados sobre conflictos y transgresiones constitucionales, la jurisprudencia de los
Estados estodavia mas indubitable e inequivoca, mas terminante y decisiva. La importancia de esto
sube de punto si se tieneen cuenta que, mas que con el gobierno federal, nuestra analogia,
nuestros puntos de contacto en lo politico, constitucional y juridico es mas bien con los diferentes
Estados de la Union americana. Nuestro sistema de gobierna es unitario. Aqui nuestras provincias
no son Estados autonomos y semi-independientes como lo son los Estados americanos. Asi que la
cedula, la unidad politica mas semejante a la nuestra no es la federal, sino la estatal. Por eso si
bienes cierto que las constituciones de los Estados, como lanuestra, todas estan fundamentalmente
calcadas en el patron de la Constitucion federal, se vera que en ciertosrasgos caracteristicos del
sistema unitario nuestra Constitucionse aproxima evidentemente mas a las de los Estados que a la
federal. Esa semejanza es sobre todo notabilisimaen la parte que se refiere al proceso
enmendatorio de la Constitucion. Es que, en realidad, los Estados de la Union americana, para
todos los efectos de la vida interior, domestica, son practicamente naciones independientes; asi que
nuestra evolucion, nuestro transitode la condicion de Commonwealth a la de Republicas oberana e
independiente si bien nos distingue de ellos enel derecho internacional, ninguna diferencia, sin
embargo, ha operado en el campo constitucional, ora en la parte dogmatica de la Constitucion, ora
en la parte organica. Y la mejor prueba de esto es que con la independencia nohemos tenido
necesidad de cambiar de Constitucion: lamisma que nos servia cuando eramos simple
Commonwealth, es decir, cuando estabamos sujetos a la soberania americana, es la misma que
nos sirve hoy cuando ya somos Republic; y no cabe duda de que nos serviria perfectamente bien si
no la tuvieramos asendereada y malparada en nuestras pecaadoras manos con repetidas
violaciones, confrecuentes asaltos contra su integridad . . ..

Ahora bien; sin petulancia se puede retar a cualquieraa que señale un caso, un solo caso en la
jurisprudencia de los Estados de la Union americana en que los tribunales de justicia se hayan
negado a conocer y enjuiciaruna violacion constitucional semejante a la que nos ocupapor la razon
de que se trataba de una cuestion politica no-justiciable. No hay absolutamente ninguno; por
esoque los recurridos, a pesar de las pacientes y laboriosas investigaciones que denota su habil y
concienzudo alegato, no han podido citar ni un solo caso.

En cambio, los tomos de jurisprudencia de various Estados dan cuenta de casos indenticosd al que
nos ocupa y entodos ellos se ha declarado invariablemente que la violacion de la Constitucion en lo
que se refiere al precepto que regula el proceso de la enmiendas a la Ley organica esuna cuestion
judicial, y ninguna Corte Suprema de Estados e ha lavado jamas las manos bajo la teoria de la
separacion de poderes. Es mas: creo que in siquiera seha planteado seriamente la objecion
fundada en el argumentod e la injusticiabilidad.

Para no alargar demasiado esta disidencia no voy a citarmas que algunos casos los mas conocidos
y representativos, tomados de la jurisprudencia de algunos Estados, a saber: Florida, Minnesota,
Georgia e Indiana. De la Corte Suprema de Florida tenemos dos casos: el de Crawford vs .Gilchrist
y el de Gray vs. Childs.

En el asunto de Crawford vs. Gilchrist (64 Fla., 41; 59 So., 963l Ann. Cas., 1914B, 916), se trataba
de una accionde prohibicion interpuesta por el Gobernador del Estado, Albert W. Gilchrist, contra el
Secretario de Estado, H. Clay Crawford, para impedir que cierta propuesta enmiendaa la
Constitucion se publicara y se sometiera al electorado en un plebiscito para su ratificacion o
rechazamiento. Esdecir, lo mismo de que se trate en el case que tenemos antenosotros. La
enmienda habia sido aprobada por la Camarade Representantes de Florida con el voto necesario y
constitucional de tres quintas (3/5), y fue enviada al Senado para su concurrencia. El Senado
tambien la aprobo conel voto de tres quintos, pero esta votacion fue reconsiderada posteriormente.
Asi estaba el asunto, pendiente de reconsideracion cuando se clausuro la Legislatura. Despues, sin
embargo, diose por aprobada la propuesta enmienday el Secretario de Estado trato de dar los
pasos parasu publicacion y ratificacion plebiscitaria. De ahi la accionde interdicto prohibitorio,
fundada en la alegacion de quela enmienda no habia sido aprobada debidamente por la Legislatura
de acuerdo con los metodos prescritos en la Constitucion de Florida. Igual que en el presente
casetambien hubo alli una batalla forense colosal, con untremendo despliegue de habilidad y talento
por cada lado. El ponente no se recata en alabar el esfuerzo de las partesy dice: ". . . we think the
parties to this litigationare to be commended, both for taking the proceedings that have brought
these unsual questions before the court for determination and for the great ability with which their
counsel have presented them to this court."

¿Se lavo las manos la Corte Suprema de Florida declarandose incompetente para conocer del
asunto por la razonde que se trataba de una cuestion politica y, por tanto, nojusticiable? De ninguna
manera. La Corte asumio resueltamente su responsabilidad y poder tradicional de interpretarla
Constitucion y fallo el asunto en su fondo, declarando que la cuestion era propiamente judicial y que
laenmienda constitucional propuesta no se habia aprobada deconformidad con los requisitos
establecidos por la Constitucionpara el proceso y tramitacion de la enmiendas. Por tanto, se denego
la peticion de supersedeas interpuestapor el recurrido para enervar el recurso; es decir, al
recurrentegano su inusitado e historico pleito. Y las esferas politicas de Florida no se desorbitaron
por esta decisivaderrota de la teoria de la separacion de poderes. Vale la pena reproducir algunar
de las doctrinas sentadas en elasunto, a saber:

Constitutional Law — Power of Courts to Determine Validity of Action by Legislature in

Proposing Constitutional Amendment.

A determination of whether an amendment to the constitution has been validly proposed and
agreed to by the Legislature is to be had in a judicial forum where the constitution provides
no other means for such determination.

Injunction — Subject of Relief — Act of Secretary of State in Certifying Proposed

Amendments.

The act of the secretary of state in publishing and certifying to the country commissioners
proposed amendments to the constitution is in its nature ministerial, involving the exercise of
no discretion, and if the act is illegal it may be enjoined in appropriate proceedings by proper
parties, there being no other adequate remedy afforded by law.

Injunction — Governor as Complainant, Secretary of State as Defendant.

The governor of the state, suing as such, and also as a citizen, taxpayer, and elector, is a
proper complainant in proceedings brought to enjoin the secretary of state from publishing at
public expense and certifying proposed amendments to the constitution upon the ground that
such proposed amendments are invalid because they have not been duly "agreed to by
three-fifths of all the members elected to each house" of the legislature.

Amendments to Constitution — Effect of Ignoring Mandatory Provisions of Constitution.

If essential mandatory provisions of the organic law are ignored in amending the constitution,
it violates the right of all the people of the state to government regulated by law.

Duty of Court to Enforce Constitution.

It is the duty of the courts in authorized proceedings to give effect to the existing constitution.

Mandatory Provisions of Constitutions as to Manner of Amending Constitution.

The provision of the organic law requiring proposed amendments of the constitution to "be
agreed to by three-fifths of all the members elected to each house" of the legislature is
mandatory, and it clearly contemplates that such amendments shall be agreed to by the
deliberate, final, affirmative vote of the requisite number of the numbers of each house at a
regular session.

Construction of Constitution to Give Intended Effect — Mandatory Character of Provisions.

 Every word of a state constitution should be given its intended meaning and effect, and
essential provisions of a constitution are to be regarded as being mandatory. (Crawford vs.
Gilchrist, Ann. Cas., 1914 B, pp. 916, 917.)

El asunto de Crawford vs. Gilchrist se decidio en 1912. Enm 1934 otro asunto constitucional
importante, el de Gray contra Childs, se decidio en virtud de la autoridad y sentencia dictada en
dicho asunto de Crawford.

En el caso citado de Gray contra Childs (156 So. Rep., 274; Fla.), tambien se trataba de una
demanda de prohibicion para impedir la publicacion de una propuesta enmienda constitucional que
iba a ser sometida al electorado de Florida para su ratificacion o rechazamiento en una eleccion
general o plebiscito fijado para Noviembre, 1934. La enmienda habia sido aprobada por la Camara
de Representantes con el voto de tres quintos (3/5), pero en el Senado hubo cierta confusion acerca
del texto finalmente aprobado. La Legislatura, antes de clausurarse aprobo unafs resolucion
conjunta autotizando a ciertos oficiales de las Camaras para que despues de la clausura hiciesen
ciertas correciones enlas actas y en el diario de sesiones a fin de formar la verdaderahistoria de los
procedimientos y compulsar el textode la enmienda tal como habia sido aprobada. Se alegabaen la
demanda que esto era ilegal y anticonstitucional. Eltribunal de circuito estimo el recurso de
prohibicion. Elevado el asunto en apelacion para ante la Corte Suprema del Estado, la misma
confirmo la sentencia apelada concediendo el interdicto prohibitorio. Hed aqui los pronunciamientos
de la Corte que parecen estereotipados para el caso que nos ocupa, a saber:

(4,5) Section 1 of article 17 of our Constitution provides the method by which the Constitution
may be amended. It requires that a proposed amendment shall be entered upon the
respective Journals of the House of Representatives and of the Senate with the yeas and
nays showing a three-fifths vote in favor of such amendment by each House. The proposed
amendment here under consideration nowhere appears upon the Journals of the Senate,
and therefore it is unnecessary for us to consider any other questions presented or any
authorities cited.

The amendment of the organic law of the state or nation is not a thing to be lightly
undertaken not to be accomplished in a haphazard manner. It is a serious thing. When an
amendment is adopted, it becomes a part of the fundamental law of the land, and it may
mean the weal or woe of the future generations of the state wherein it becomes a part of the
fundamental law. We cannot say that the strict requirements pertaining to amendments may
be waived in favor of a good amendment and invoked as against a bad amendment. If the
Constitution may be amended in one respect without the amendment being spread upon the
Journals of one of the respective House of the Legislature, then it may be ameqnded in any
other respect in the same manner. It is not for the courts to determine what is a wise
proposed amendment or what is an unwise one. With the wisdom of the policy the courts
have nothing to do. But it is the duty of the courts, when called upon so to do, to determine
whether or not the procedure attempted to be adopted is that which is required by the terms
of the organic law.

Finding that the organic law has not been complied with, as above pointed out, the decree
appealed from should be, and the same is hereby, affirmed on authority of the opinion and
judgment in the case of Crawford vs. Gilchrist, 64 Fla., 41; 59 So., 953; Ann. Cas., 1914B,
9156. (Gray vs. Childs, 156 Southern Reporter, pp. 274, 279.)

Note se que la clausula sobre enmiendas en la Constitucion de Florida es semejante a la nuestra, a

saber: (1) la propuesta enmienda tiene que ser aprobada por la Legislatura, en Florida con el voto
de tres quintos (3/5) de los miembros, en Filipinas con el voto de tres cuartos (3/4); (2) los sies y los
nos tienen que hacersesd constar en el diario de sesiones (Articulo VI, seccion 10, inciso 4; seccion
20, inciso 1, Constitucion de Filipinas); (3) despues de aprobada la enmienda por la Legislatura se
somete al electorado en una eleccion o plebiscito, para su ratificacion orechazamiento.

El procedimiento sobre enmiendas prescrito en la Constitucion federal americana es diferente, a

saber: el Congreso puede proponer la enmienda bien (1) mediante la aprobacion de dos tercios
(2/3) de sus miembros; bien (2) mediante una convencion que se convocara al efecto apeticion de
las Legislaturas de dos tercios (2/3) de los diferentes Estados. En cualquiera de ambos casos la
enmiendasera valida para todos los efectos y fines comoparte de la Constitucion siempre que fuera
ratificada porlas Legislaturas de tres cuartos (3/4) de los Estados, o porconvenciones de tres
cuartas-partes de los mismos, segun que uno u otro modo de ratificacion hubiera sido propuestopor
el Congreso.

Esta diferencia de procedimientos es la que, segun digomas arriba, me inclina a sostener que la
jurisprudencia constitucional propiamente aplicable a Filipinas es la jurisprudencia de los Estados,
puesto que es con estos con los cuales tenemos analogia o paridad constitucional en lo que toca a
la forma y manera como se puede reformar la Constitucion.

Seguire ahora citando mas casos.

Tenemos un caso de Minnesota, identico a los ya citados de Florida. En el asunto de In

re McConaughy (106 Minn., 392; 119 N.W., 408), tambin se suscito la cuestion de si una propuesta
enmienda constitucional habia sido aprobada de acuerdo con los requisitos señalados en la
Constitucion de Minnesota. Alli como aqui tambien hubo disputa sobre si esto era una cuestion
judicial o una cuestion politica no justiciable. La Corte Suprema deaquel Estado declaro sin ambajes
que era una cuestion judicial. He aqui sus palabras que no tienen desperdicio:

The authorities are thus practically uniform in holding that whether a constitutional
amendment has been properly adopted according to the requirements of an existing
constitution is a judicial question. There can be little doubt that the consensus of judicial
opinion is to the effect that it is the absolute duty of the judiciary to determine whether the
constitution has been amended in the manner required by the constitution, unless a special
tribunal has been created to determine the question; and even then many of the courts hold
that the tribunal cannot be permitted to illegally amend the organic law. There is some
authority for the view that when the constitution itself creates a special tribunal, and confides
to it the exclusive power to canvass votes and declare the results, and makes the
amendment a part of the constitution as a result of such declaration by proclamation or
otherwise, the action of such tribunal is final and conclusive. It may be conceded that this is
true when it clearly appears that such was the intention of the people when they adopted the
constitution. The right to provide a special tribunal is not open to question; but it is very
certain that the people of Minnesota have not done so, and this fact alone eliminates such
cases as Worman vs. Hagan, 78 Md., 152; 27 Atl., 616; 21 L. R. A., 716, and
Miles vs. Badford, 22 Md., 170; 85 Am. Dec., 643, as authorities against the jurisdiction of
the courts. (In re McConaughy, 106 Minn., 392; 119 N. W., 408.)

Tambien tenemos un caso de Georgia. En el asunto de Hammond vs. Clark (136 Ga., 313; 71 S.E.,
479; 38 L.R.A.[N.S.], 77), se suscito igualmente una disputa sobre siuna enmienda habia sido
aprobada de acuerdo con los requisitos de la Constitucion era una cuestion judicial o no. La Corte
Suprema de aquel Estado declaro afirmativamente. He aqui su inequivoca pronunciamiento:

Counsel for plaintiff in error contended that the proclamation of the governor declaring that
the amendment was adopted was conclusive, and that the courts could not inquire into the
 question. To this contention we cannot assent. The constitution is the supreme state law. It
provides how it may be amended. It makes no provision for exclusive determination by the
governor as to whether an amendment has been made in the constitutional method, and for
the issuance by him of a binding proclamation to that effect. Such a proclamation may be
both useful and proper, in order to inform the people whether or not a change has been
made in the fundamental law; but the constitution did not make it conclusive on that subject.
When the constitution was submitted for ratification as a whole, a provision was made for a
proclamation of the result by the governor. Const. art. 13, section 2, par. 2 (Civ. Code 1910,
section 6613). But in reference to amendment there is no such provision. Const. article 13,
section 1, par. 1 (Civ. Code 1910, section 6610). In the absence of some other exclusive
method of determination provided by the constitution, the weight of authority is to the effect
that whether an amendment has been properly adopted according to the requirements of the
existing constitution is a judicial question. (Hammond vs. Clark, 136 Ga., 313; 71 S.E.,
479;38 L.R.A. [N.S.], 77.)

Tambien tenemos el siguiente case de Indiana:

(1) In the beginning we are confronted with the contention on the part of appellees that this
court has no jurisdiction to determine the questions in issue here. In the case of
Ellingham vs. Dye, 178 Ind., 336, 391; 99 N.E., 1, 21 (Ann. Cas. 1915C, 200), this court,
after reviewing many decisions as to the power of the courts to determine similar questions,
sums up the whole matter as follows:

"Whether legislative action is void for want of power in that body, or because the
constitutional forms of conditions have not been followed or have been violated (emphasis
supplied) may become a judicial question, and upon the courts the inevasible duty to
determine it falls. And so the power resides in the courts, and they have, with practical
uniformity, exercised the authority to determine the validity of the proposal, submission, or
ratification of change in the organic law. Such is the rule in this state" — citing more than 40
decisions of this and other states.

(2) Appellees further contend that appellant has not made out a case entitling him to
equitable relief. The trial court found that the officers of the state, who were instructed with
the execution of the law, were about to expend more than $500,000 under the law, in
carrying out its provisions; indeed, it was suggested, in the course of the oral argument, that
the necessary expenditures would amount to more than $2,000,000. This court, in the case
of Ellingham vs. Dye, supra, involving the submission to the people of the Constitution
prepared by the Legislature, answered this same question contrary to the contention of
appellees. See pages 413 and 414 of that opinion. (186 Ind., 533; Bennett vs. Jackson,
North Eastern Reporter, Vol. 116, pp. 921, 922.)

Creo que la posicion de la jurisprudencia americana tanto federal como de Estado sobre este punto,
esto es, cuandoes judicial la cuestion y cuando no lo es, se halla bien definida en el tomo 12 del
Corpus Juris, en la parte que llevael encabezamiento de "Constitutional Law" y bajo el subepigrafe
que dice: "Adoption of Constitution and Amendments" (12 Corpus Juris, 880, 881). Es un
compendiocuidados amente elaborado en que se da un extracto de la doctrina con las citas sobre
autoridades al pie. Reproducire el compendio, pero omitiendo las citas para no alargar demasiado
esta disidencia: el que desee comprobarlas no tienemas que consultar el tomo. En realidad, leyendo
este extracto se ve que parece un resumen del extenso analisis que llevo hecho sobre la doctrina
tanto federal como estatal. Su meollo es, a saber: la cuestion de si o no una nueva constitucion se
ha adoptado la tienen que decidir los departamentos politicos del gobierno; pero la cuestion de si
una enmienda a una constitucion existente ha sido debidamente propuesta, adoptada y ratificada de
acuerdo con los requisitos provistos por la Constitucion, para que vengaa ser parte de la misma, es
una cuestion que los tribunales de justicia tienen que determinar y resolver, excepto cuandola
materia ha sido referida por la Constitucion a un tribunale special con poder para llegar una
conclusion final. He aqui el sinopsis:

SEC. 382. b. Adoption of Constitution and Amendments. — Whether or not a new

constitution has been adopted is a question to be decided by the political departments of the
government. But whether an amendment to the existing constitution has been duly proposed,
adopted, and ratified in the manner required by the constitution, as as to become part
thereof, is a question for the courts to determine, except where the matter has been
committed by the constitution to a special tribunal with power to make a conclusive
determination, as where the governor is vested with the sole right and duty of ascertaining
and declaring the result, in which case the courts have no jurisdiction to revise his decision.
But it must be made clearly to appear that the constitution has been violated before the court
is warranted in interfering. In any event, whether an entire constitution is involved, or merely
an amendment, the federal courts will not attempt to pass on the legality of such constitution
or amendment where its validity has been recognized by the political departments of the
state government, and acquiesced in by the state judiciary. (12 C.J., pp. 880, 881.)

VI

Otra razon que aduce la mayoria para desestimar el recusro es que la copia impresa de la
resolucion en cuestionaparece certificada por los presidentes de ambas Camaras del Congreso;
que en esa certificacion consta que dicha resolucion fue debidamente aprobada por el Congreso
conlos votos de las tres quintas-partes (3/5) de sus miembros; que, por tanto, la debida aprobacion
de dicha resolucion nose puede cuestionar, es una prueba concluyente para todoel mundo y para
los tribunales de justicia particularmente. Este argumento se funda en la doctrina inglesa llamada
"enrolled act doctrine," cuya traduccion mas aproximada al español es "doctrina de la ley impresa."
Esto, por unlado.

Por otro lado, la representacion de los recurrentes arguye que lo que rige y prevaleced en esta
jurisdiccion noes la doctrina inglesa o "enrolled act doctrine," sino ladoctrina americana que se
conoce con el nombre de "journalentry doctrine," en virtud de la cual la prueba de siuna ley o una
resolucion ha sido debidamente aprobadapor el Congreso debe buscarse en el diario de sesiones
mismo del Congreso. Lo que diga el diario de sesiones esconcluyente y final.

Los recurrentes tienen la razon de su parte. Este punto legal ya se resolvio por esta Corte en la
causa de los Estados Unidos contra Pons (34 Jur. Fil., 772), que ambaspartes discuten en sus
respectivos informes. Una de las defensas del acusado era que la Ley No. 2381 de la Legislatura
Filipina en virtud de la cual habia sido condenado era nula e ilegal porque so aprobo despues ya del
cierrede las sesiones especiales que tuvo lugar el 28 de Febrero de 1914, a las 12 de la noche; es
decir, que, en realidad de verdad, la aprobacion se efectuo el 1.º de Marzo, puesla sesion sine
die del dia anterior se prolongo mediante una ficcion haciendose parar las manecillas del reloj a las
12 en punto de la noche. Esta Corte, sin necesidad deninguna otra prueba, examino el diario de
sesiones correspondientea la referida fecha 28 de Febrero, y habiendo hallado que alli constaba
inequivocamente haberse aprobadola mencionada ley en tal fecha, fallo que esta pruebaera final y
concluyente para las partes, para los tribunales y para todo el mundo. La Corte desatendio por
completoel "enrolled act," la copia impresa de la ley, pues dijo, asaber: "Pasando por alto la cuestion
relativa as si la Ley Impresa (Ley No. 2381), que fue aprobada por autorizacion legal, constituye
prueba concluyente sobre la fecha desu aprobacion, investigaremos si los Tribunales pueden
consultar otras fuestes de informacion, ademas de los diarios de las sesiones legislativas, para
determinar la fecha enque se cerraron las sesiones de la Legislatura, cuando talesdiarios son claros
y explicitos." Y la Corte dijo que nohabia necesidad de consultar otras fuestes, que el diario de
sesiones era terminante, definitivo; y asi fallo la causaen contra del apelante.

Y no era extraño que asi ocurriese: habia en la Corte una mayoria americana, familiarizada y
compenetrada naturalmente con la jurisprudencia pertinente de su pais ¿Quede extrano habia, por
tanto, que aplicasen la doctrina americana, la doctrina del "journal entry," que es mas democratica,
mas republicana, en vez de la doctrina inglesa, el "enrolled act doctrine," que despues de todo tiene
ciertotinte monarquico, producto del caracter peculiar e influencia tradicionalista de las instituciones
inglesas? (Vease Rash vs. Allen, 76 Atl. Rep., 371; Del.) Firman, como se sabe, la decision el
ponente Sr. Trent, y los Magistrados Sres. Torres, Johnson, Moreland y Araullo, sin mingun
disidente.Y notese que cuando se promulgo esta sentencia todavia estaba en vigor el articulo 313
del Codigo de Procedimiento Civil, tal como estaba reformado por la Ley No. 2210. que entre otras
cosas proveia lo siguiente: ". . . Entendiendose, que en el caso de las Leyes de la Comisionde
Filipinas o de la Legislatura Filipina, cuando existeuna copia firmada por los Presidentes y los
secretarios de dichos cuerpos, sera prueba concluyente de las dispociones de la ley en cuestion y
de la debida aprobacion delas mismas." ¿Que mejor prueba de la voluntad expresa, categorica, de
hacer prevalecer la doctrina americana sobrela doctrina inglesa? Lo mas comodo para esta
Cortehubiera sido aplicar el citado articulo 313 del Codigo de Procedimiento Civil. No lo hizo, paso
por alto sobreel mismo, yendo directamente al diario de sesiones dela Legislatura, tomando
conocimiento judicial del mismo. Si aqui hay algun respeto a la regla del stare decisis, estaes una
magnifica ocasion para demostrarlo. Una regla bien establecida no ha de abrogarse asi como asi;
sobretodo cuando de por medio anda la Constitucion como enel presente caso en que se ha
formulado ante nosotros la queja de que la ley fundamental ha sido violada en unrespecto muy
importante como es el capitulo sobre enmiendas, y la queja no solo no es temeraria sino que se
hallaapoyada en buenas y solidas razones.

Mas todavia: cuando se establecio la doctrina en lacitada causa de los Estados Unidos contra Pons
(1916, Agosto 12) adoptando en esta jurisdiccion la doctrina americana del "journal entry" en lugar
de la inglesa del "enrolled act," en nuestra Ley Organica que, por cierto, no era aun la Ley Jones
sino la Ley del Congreso de 1902, no habia ninguna disposicion que proveyera mandatoriamente
que en el diario de sesiones de la Legislatura sehiciesen constar los sies y los nos en la votacion de
cualquier proyecto de ley o resolucion, consignando especifica mentelos nombres de los miembros
que hayan votado enpro y en contra, ni tampoco habia ninguna disposicione statutoria a dicho
efecto. De modo que en aquella epoca el diario de sesiones de la Legislatura carecia aun de las
fuertes garantias de veracidad que ahora posee en virtud de esa disposicion que hace obligatoria la
constancia oconsignacion de los sies y nos, disposicion incorporada enla Constitucion del
Commonwealth, ahora de la Republica. (Vease Constitucion de Filipinas, Articulo VI, seccion 10,
inciso 4; seccion 20, incico 1; seccion 21, inciso 2.)

Sobre la derogacion del articulo 313 del Codigo de Procedimiento Civil no puede haber duda. Ese
articulo, que equivale a una regla de prueba, no se ha incorporado enel Reglamento de los
Tribunales. No tratandose de una regla fundada en un principio general y unanimemente
establecido, sino de algo peculiar aislado, acerca del cuallas autoridades estan divididas, con una
mayoria de los Estados de la Union americana decididamente en contra, suno inclusion en el
Reglamento de los Tribunales tiene queconsiderarse necesariamente como una derogacion.
Indudablemente esta Corte, al no incluir dicho articulo en el Reglamento de los Tribunales, ha
querido derogarlo en vistade los resuelto en la citada causa de Estados Unidos contraPons y de la
novisima disposicion insertada en la Constitucion del Commonwealth, ahora de la Republica, que
exige la consignacion en el diario de sesiones de los sies y nos en cada votacion final de proyecto
de ley o resolucion conjunta, con especificacion de los nombres de los que hasvotado.

Resulta evidente de lo expuesto que ahora existen masrazones para reafirmar en esta jurisdiccion
la doctrina americana del "journal entry" o "constancia en el diario desesiones" (1) porque el citado
seccion 313 del Codigo de Procedimiento Civil ya no rige con la vigencia del Reglamento de los
Tribunales; (2) porque esa disposicion denuestra Constitucion que hace obligatoria la consignacion
de los sies y nos en la votacion de cada bill o resolucion, con especificacion de los nombres de los
que hayan votado enfavor y en contra, hace del diario de sesiones la mejor prueba sobre
autenticidad de los actos legislativos y es, porconsiguiente, la ley sobre la materia en este pais, con
entera exclusion de la doctrina inglesa o "enrolled act doctrine."Las autoridades americanas son
contestes en que siempreque en un Estado de la Union Federal la Constitucioncontiene una
disposicion semejante a la nuestra sobre sies y nos la regla de prueba no es la copia impresa de la
leyo "enrolled act," sino el "journal entry" o constancia enel diario de sesiones.
(Vease Rash vs. Allen, supra.)

Aqui se podria dar por terminada toda discusion sobre este punto si no fuera porque los abogados
de los recurridos arguyen fuertemente en favor de la doctrina de la copia impresa o "enrolled act
doctrine," y la mayoria de esta Corte acepta sus argumentos. Se cita, sobre todo, el asunto federal
de Field vs. Clark en apoyo de la doctrina.

He examinado la jurisprudencia americana sobre este particular con toda la diligencia de que he
sido capaz y he llegado a la conclusion de que nuestros predecesores enesta Corte merecen todo
encomio por su indubitable aciertoal adoptar en esta jurisdiccion, en la causa de los Estados
Unidos contra Pons, supra, la doctrina americana del "journal entry" o constancia en el diario de
sesiones legislativas. No cabe duda de que esta doctrina es mas democratica, mas liberal, y
tambien mas humana y mas concorde con la realidad. La doctrina inglesa del "enrolled act" ocopia
impresa de la ley esta basada en el derecho comun y se adopto en Inglaterra donde, como se sabe,
no hay constitucion escrita y la forma de gobierno es monarquica,y se adopto en un tiempo en que
el poder del Parlamento que era tambien el mas alto tribunal de justicia, era absoluto y
transcendente y las restricciones sobre el mismo eran muy ligeras. Por eso un tribunal americano
ha dicho: "Because such a rule obtains as to the Parliament of Great Britain, under a monarchial
form of government, that cannot be regarded as a very potent reason for its application in this state,
where the will of the sovereign power hasbeen declared in the organic act."
(Vease Rash vs. Allen, supra, pag. 379; cito con frecuencia este asunto famoso de Delaware porque
es en el mismo donde he hallado una discusion mas acabada y comprensiva sobre ambas
doctrinas: la americana del "journal entry" y la inglesa del "enrolled act.")

Es indudable que el sesgo de la jurisprudencia americana hoy en dia es a favor de la doctrina del
"journal entry." Lo resuelto en el asunto federal de Field contra Clark, enque tanto enfasis ponen los
recurridos, no ha hecho mas que fortalecer ese giro, pues en dicho asunto va en vuelta lainferencia
de que cuando la Constitucion establece ciertos requisitos para la aprobacion de una ley o
resolucion, conla consignacion de los sies y nos y los nombres de los que han votado afirmativa y
negativamente, el diario de sesioneses el que rige y prevalece como modo e instrumento de
autenticacion. Por eso que en el asunto tipico y representativode Union Bank vs. Commissioners of
Oxford (199 N.C., 214; 25 S.E., 966; 34 L.R.A., 487), la Corte Supremade North Carolina ha
declarado lo siguiente.

According to the law it is well settled in nearly 100 well-adjudicated cases in the courts of last
resort in 30 states, and also by the Supreme Court of the United States, that when a state
Constitution prescribes such formalities in the enactment of laws as require a record of
the yeas and nays on the legislative journals, these journals are conclusive as against not
only a printed statute, published by authority of law, but also against a duly enrolled act. The
following is a list of the authorities, in number 93, sustaining this view either directly or by
very close analogy. . . . It is believed that no federal or state authority can be found in conflict
with them.
 Decisions can be found, as, for instance, Carr. vs. Coke (116 N.C., 223; 22 S.E. 16; 28
L.R.A., 737; 47 Am. St. Rep., 801, supra, to the effect that, where the Constitution contains
no provision requiring entries on the journal of particular matters — such, for example, as
calles of the yeas and nays on a measure in question — the enrolled act cannot, in such
case, be impeached by the journals. That, however, is very different proposition from the one
involved here, and the distinction is adverted to in Field vs. Clark, 143 U.S., 671 (12 Sup. Ct.,
495; 36 Law. ed., 294. (Rash vs. Allen, 76 Atl. Rep., p. 377.)

Y en el asunto de Ottawa vs. Perkins la Corte Suprema de los Estados Unidos ha dicho lo siguiente:

But the Supreme Court of the United States, in the case of South Ottawa vs. Perkins, 94
U.S., 260; 24 Law., ed., 154, on appeal from the United States court for the Northern district
of Illinois (Mr. Justice Bradley delivering the opinion), said: "When once it became the settled
construction of the Constitution of Illinois that no act can be deemed a valid law, unless by
the journals of the Legislature it appears to have been regularly passed by both houses, it
became the duty of the courts to take judicial notice of the journal entries in that regard. The
courts of Illinois may decline to take that trouble, unless parties bring the matter to their
attention, but on general principles the question as to the existence of a law is a judicial one
and must be so regarded by the courts of the United States." (Rash vs. Allen, 76 Atl. Rep., p.
387.)

Se dice que el interest publico exige que el "enrolled act" o copia impresa de la ley firmada por los
Presidentes deambas Camaras del Congreso de declare concluyente y final, porque de otra manera
habria caos, confusion: cualquierase creeria con derecho a atacar la validez de una ley o resolucion,
impugnando la autenticidad de su aprobacion ode su texto. Pero esto pone en orden las siguientes
preguntas que se contestan por si mismas: ?no es el diariode sesiones un documento
constitucional, exigido por la Constitucion que se lleve por las dos camaras del Congreso,
controlado y supervisado por dichas camaras y por los oficiales de las mismas? ¿que mejor garantia
de autenticidad, contra la falsificacion, que ese requerimiento constitucional de consignar
obligatoriamente en el diario, en la votacionde todo bill o resolucion, los sies y los nos, y
haciendoconstar los nombres tanto afirmativos como negativos? ¿se ha producido por ventura caos
y confusion en los Estados americanos que han adoptado esta regla y que, segun admiten los
mismos recurridos, forman una decisiva mayoria? ¿se acaso posible concebir que el sentido
americano, tan practico, tan utilitario, tan, realista, optase poruna regla que fuese origen de caos y
confusion? Prescindiendo ya de la jurisprudencia que, ya hemos visto, estadecididamente inclinada
a favor de la doctrina americana del "journal entry" ?que dicen los tratadistas mas autorizados, los
de nombradia bien establecida, y sobre todolos especialistas en derecho constitucional?

El Juez Cooley, en su celebrada obra sobre Constitutional Limitations, 7th ed., 193, dice lo siguiente
a favor del "journal entry rule":

Judge Cooley in his work on Constitutional Limitations (7th Ed., 193), says: "Each house
keeps a journal of its proceedings which is a public record, and of which the courts are at
liberty to take judicial notice. If it would appear from these journals that any act did not
receive the requisite majority, or that in respect to it the Legislature did not follow any
requirement of the Constitution or that in any other respect the act was not constitutionally
adopted, the courts may act upon this evidence, and adjudge the statute void. But whenever
it is acting in apparent performance of legal functions, every reasonable presumption is to be
made in favor of the action of a legislative body. It will not be presumed in any case, from the
mere silence of the journals, that either house has exceeded its authority, or disregarded a
constitutional requirement in the passage of legislative acts, unless when the Constitution
 has expressly required the journals to show the action taken, as, for instance, where it
requires the yeas and nays to be entered."

Sutherland, en su tambien celebrada obra sobre Statutory Construction, seccion 46 y siguientes,

tambien sedeclara a favofr del "journal entry rule" con el siguiente pronunciamiento:

The presumption is that an act properly authenticated was regularly passed, unless there is
evidence of which the courts take judicial notice showing the contrary. The journals are
records, and, in all respects touching proceedings under the mandatory provisions of the
Constitution, will be effected to impeach and avoid the acts recorded as laws and duly
authenticated, if the journals affirmatively show that these provisions have been disregarded.
. . . The journals by being required by the Constitution or laws, are record . . ..

When required, as is extensively the case in this country, by a paramount law, for the
obvious purpose of showing how the mandatory provisions of that law have been followed in
the methods and forms of legislation, they are thus made records in dignity, and are of great
importance. The legislative acts regularly authenticated are also records. The acts passed,
duly authenticated, and such journals are parallel records; but the latter are superior, when
explicit and conflicting with the other, for the acts authenticated speak decisively only when
the journals are silent, and not even then as to particulars required to be entered therein.
(Rash vs. Allen, 76 Atl. Rep., p. 378.)

Desde luego la opinion de Wigmore, en que se apoya la mayoria, merece toda clase de respetos.
Pero creo no seme tachara de parcial ni ligero si digo que sobre el punto constitucional que estamos
discutiendo, me inclino mas y doy mayor peso a la opinion del Juez Cooley y de Sutherland, por
razones obvias. Wigmore nunca pretendio serespecialista en derecho constitucional. Con mucho
tino elponente en el tantas veces citado asunto de Rash contra Allen dice lo siguiente de la opinion
del celebrado constitucionalista:

We have quoted Judge Cooley's language because of the great respect that his opinions
always command, and also because of the fact that it is upon the authority of his opinion
that many of the decisions in support of the American rule have been based. (Rash vs. Allen,
76 Atl. Rep., p. 378.)

Un detenido y minucioso examen de la jurisprudencia y de los tratados sobre el particular lleva a

uno al convencimiento de que la tendencia actual en America es a tomar la substancia, el fondo
mismo de las cosas en vez de la simpleforma, el caparazon, a prescindir del artificio, de la ficcion
legal, para ir a la realidad misma. Y no cabe duda deque el "enrolled act" se presta a veces a tener
mas apoyo en el artificio y ficcion legal, mientras que el diario desesiones, con las fuertes garantias
de autenticidad como las que se proveen en nuestra Constitucion y en Constituciones similares
americanas, reproduce y refleja la realidad de los hechos relativamente con mas exactitud y
fidelidad. Tomemos como ejemplo el presente caso. La copia impresade la resolucion cuestionada,
firmada por los Presidentes de ambas Camaras del Congreso, reza que la misma fueaprobada
debidamente con los votos de las tres cuartas-partes (3/4) del Congreso, pero esto no es mas que
unaopinion, una conclusion legal de los presidentes, pues noconsta en dicha copia impresa el
numero concreto de votos emitidos, ni el numero concreto de la totalidad de miembros actuales de
cada camara. Tampoco constan en dichacopia impresa, tal como manda la Constitucion, los sies y
nos de la votacion, con los nombres de los que votaron afirmativa y negativamente. Asi que, con
solo esa copiaimpresa a la vista, no podemos resolver la importantisima cuestion constitucional que
plantean los recurrentes, a saber: que la votacion fue anticonstitucional; que arbitrariamente fueron
excluidos de la votacion 11 miembros debidamente cualificados del Congreso — 3 Senadores y 8
Representantes; que, por virtud de la exclusion ilegal y arbitraria de estos 11 miembros, el numero
de votos emitidosen cada camara a favor de la resolucion no llegani constituye las tres cuartas-
partes (3/4) que requiere la Constitucion; y que, por tanto, la resolucion es ilegal, anti-constitucional
y nula. Para resolver estas cuestiones, todastremendas, todas transcedentales, no hay mas
remedio queir al fondo, a las entrañas de la realidad, y todo ello no sepuede hallar en el "enrolled
act," en la copia impresa dela ley, que es incolora, muda sobre el particular, sino enel diario de
sesiones donde con profusion se dan tales detalles. ¿No es verdad que todo esto demuestra
graficamentela evidente, abrumadora superioridad del "journalentry" sobre el "enrolled act," como
medio de prueba?

Mi conclusion, pues, sobre este punto es que el giro dela legislacion jurisprudencia en los diferentes
Estados de la Union es decididamente en favor de la doctrina americana del "journal entry"; que en
Filipinas desde 1916 en que se promulgo la sentencia en la causa de Estados Unidos contra Pons
la regla es el "journal entry rule"; que esta regla se adopto por este Supremo Tribunal enun tiempo
en que estaba vigente el articulo 313 del Codigo de Procedimiento Civil y cuando el diario de
sesiones de la Legislatura no gozaba de los prestigios de que goza hoy, en virtud de las rigidas y
fuertes garantias sobre autenticidad de las votaciones legislativas provistas en nuestra Constitucion;
que ahora que el referido articulo 313 del Codigo de Procedimiento Civil ya ha sido derogado porel
Reglamento de los Tribunales y se hallan vigentes esasgarantias constitucionales que
son mandatorias, la reglaindiscutible y exclusiva sobre la materia es el "journal entry rule"' que la
regla americana es mas liberal y mas democratica que la regla inglesa, la cual tiene un evidente
sabormonarquico; que el puebo filipino jamas tolerara un sistemamonarquico o algo semejante; que
el cambiar de regla ahora es un paso muy desafortunado, un injustificado retroceso, un apoyo a la
reaccion y puede dar lugar a la impresionde que las instituciones de la Republica filipina tienden a
ser totalitarias; que la doctrina inglesa del "enrolled act" es un instrumento harto inadecuado,
ineficaz, para resolver conflictos constitucionales que se iran planteando ante los tribunales, e
inclusive puede fomentargroseros asaltos contra la Constitucion; que, por el contrario, la doctrina
americana del "journal entry" es amplia, eficaz, y permite que con toda libertad y desembarazose
puedan resolver los conflictos y transgresiones constitucionales, sin evasivas ni debilidades; y, por
ultimo, que nuestro deber, el deber de esta Corte, es optar por la doctrina que mejor asegure y
fomente los procesos ordenadosde la ley y de la Constitucion y evitef situaciones en que el
ciudadano se sienta como desamparado de la ley y dela Constitucion y busque la justicia por sus
propias manos.

VII

La mayoria, habiendo adoptado en este asunto una posicion inhibitoria, estima innecesario discutir
la cuestion de si los 3 Senadores y 8 Representantes que fueron excluidos de la votacion son o no
miembros del Congreso. Es decir, lo que debiera ser cuestion fundamental — el leitmotiff, la
verdadera ratio decidendi en este caso — se relegaa termino secundario, se deja sin discutir y sin
resolver. No puedo seguir a la mayoria en esta evasion: tengo que discutir este punto tan
plenamente como los otros puntos, si no mas, porque es precisamente lo principal — el meollo del
caso.

Comencemos por el Senado. Los 3 Senadores excluido seran miembros actuales del Senado
cuando se voto la resolucion cuestionada, por las siguientes razones:

(a) Segun la estipulacion de hechos entre las partes y los ejemplares del diario de sesiones que
obran en autoscomo anexos, dichos Senadores fueron proclamados por la Comision de Elecciones
como electos juntamente con sus 21 compañeros. Despues de la proclamacion participaron en la
organizacion del Senado, votando en la eleccion del Presidente de dicho cuerpo. De hecho el
Senador Vera recibio 8 votos para Presidente contra el Senador Avelino que recibio 10. Tambien
participaron en algunos debates relativos a la organizacion.
(b) Tambien consta en la estipulacion de hechos y enel diario de sesiones que prestaron su
juramento de cargo ante Notarios particulares debidamente autorizados y calificados para
administrarlo, habiendose depositado dicho juramento en la secretaria del Senado. Se dice, sin
embargo, que ese juramento no era valido porque no se presto colectivamente, en union con los
otros Senadores. Esto es unerror. La Ley sobre la materia es el articulo 26 del Codigo
Administrativo Revisado, a saber:

By whom oath of office may be administered. — The oath of office may be administered by
any officer generally qualified to administer oath; but the oath of office of the members and
officers ofeither house of the legislature may also be administered by persons designated for
such purpose by the respective houses.

Este articulo es demasiado claro para necesitar mas comentarios. Es evidente que el Senador y
Representante puede calificarse prestando el juramento de su cargo antecualquier funcionario
autorizado para administrarlo; y la disposicion de que tambien pueden administrar ese juramento
personas designadas por cada camara es solo decaracter permisivo, opcional. Y la mejor prueba de
estoes que antes del advenimiento de la Republica el Senadodhabia reconocido la validez del
juramento de cargo prestadoante un Notario Publico por otros Senadores de la minoria los Sres.
Mabanag, Garcia, Confesor y Cabili. Amenos que estas cosas se tomen a broma, o la
arbitrariedadse erija en ley — la ley de la selva, del mas fuerte — no esconcebible que el juramento
ante Notario se declare validoen un caso y en otro se declared invalido, concurriendo lasmismas
circunstancias;

(c) Tambien consta, en virtud de la estipulacion de hechos y de los ejemplares del diario de
sesiones que obran en autos como anexos, que los Senadores Vera, Diokno y Romero han estado
cobrando todos sus sueldos y emolumentos como tales Senadores desde la inauguracion del
Senado hasta ahora, incluso naturalmente el tiempo en quese aprobo la resolucion cuestionada. Es
violentar demasiadola argucia el sostener que un miembro de una camara legislativa puede cobrar
todos sus haberes y emolumentos y, sin embargo, no ser legalmente miembro de la misma. El
vulgo, maestro en la ironia y en el sarcasmo, tiene unamanera cruda para pintar esta situacion
absurda: "Tiene, pero no hay". ¿Como es posible que las camaras autoricen el desembolso de sus
fondos a favor de unos hombres que, segun se sostiene seriamente, no estan legalmente
cualificados para merecer y recibir tales fondos?

(d) Se arguye, sin embargo, que los Senadores Vera, Diokno y Romero no son miembros del
Senado porque, envirtud de la Resolucion Pendatun, se les suspendio el juramento y el derecho a
sus asientos. Respecto del juramento, ya hemos visto que era valido, segun la ley. Respecto dela
suspension del derecho al asiento, he discutido extensamente este punto en mi disidencia en el
asunto de Vera contra Avelino, supra, calificando de anticonstitucional ynula la suspension. Pero
aun suponiendo que la mismafuera valida, los recurrentes alegan y arguyen que no poreso han
dejado de ser miembros los suspendidos. La alegaciones acertada. La suspension no abate ni
anula lacalidad de miembro; solo la muerte, dimision o expulsion produce ese efecto
(vease Alejandrinocontra Quezon, 46 Jur. Fil., 100, 101; vease tambien United
States vs. Dietrich,126 Fed. Rep., 676). En el asunto de Alejandrino contra Quezon hemos
declarado lo siguiente:

Es cosa digna de observar que el Congreso de los Estados Unidos en toda su larga historia
no ha suspendido a ninguno de sus miembros.Y la razon es obvia. El castigo mediante
reprension o multavindica la dignidad ofendida de la Camara sin privar a los representados
de su representante; la expulsion cuando es permisiblevindica del mismo modo el honor del
Cuerpo Legislativo dando asi oportunidad a los representados de elegir a otro nuevo; pero la
suspension priva al distrito electoral de una representacion sin quese le de a ese distrito un
 medio para llenar la vacante. Mediante la suspension el cargo continua ocupado, pero al
que lo ocupa se le ha impuesto silencio. (Alejandrino contra Quezon, 46 Jur. Fil.,100, 101.)

La posicion juridica y constitucional de los 8 Representantes excluidos de la votacion es todavia

mas firme.Consta igualmente, en virtud de la estipulacion de hechos y de los ejemplares del diario
de sesiones obrantes en autos, que dichos 8 Representantes tambien se calificaron, alinaugurarse
el Congreso, prestando el juramento de sucargo ante Notarios Publicos debidamente autorizados;
quesu juramento se deposito en la Secretaria de la Camara; que han estado cobrando desde la
inauguracion hasta ahoratodos sus sueldos y emolumentos, excepto dos los Representantes Taruc
y Lava que han dejado de cobrar desde hacealgun tiempo; que tambien han participado en algunas
deliberaciones, las relativas al proyecto de resolucion parasuspenderlos.

Pero entre su caso y el de los Senadores existe estadiferencia fundamental: mientras con respecto
a estos ultimosla Resolucion Pendatun sobre suspension llego aaprobarse adquiriendo estado
parlamentario, en la Camarade Representantes no ha habido tal cosa, pues la resolucionde
suspension se endoso a un comite especial para su estudioe investigacion, y hasta ahora la
Camara no ha tomadosobre ella ninguna accion, no favorable ni adversa. Demodo que en el caso
de los Representantes hasta ahora nohay suspension, porque de tal no puede calificarse la
acciondel Speaker y del macero privandoles del derecho detomar parte en las deliberaciones y
votaciones. Para queuna suspension produzca efectos legales y, sobre todo, constitucionales, tiene
que decret arla la Camara misma, pormedio de una resolucion debidamente aprobada, de
acuerdocon los requisitos provistos en la Constitucion. Nada deesto se ha hecho en la Camara.

El Articulo XV de nuestra Constitucion, sobre enmiendas, dice que "El Congreso, en sesion
conjunta, por el voto detres cuartas partes de todos los miembros del Senado y dela Camara de
Representantes votando separadamente, puede proponer enmiendas a esta Constitucion o
convocar unaconvencion para dicho efecto." Donde la ley no distingueno debemos distinguir. La
frase todos los miembros debeinterpretarse como que incluye todos los miembros elegidos, no
importa que esten ausentes o esten suspendidos; mas naturalmente cuando no estan suspendidos
como en el casode los ya citados 8 Representantes. El Juez Cooley, ensu ya citada
obra Constitutional Limitations, hace sobreeste particular los siguientes comentarios que son
terminantes para la resolucion de este punto constitucional, a saber:

For the votre required in the passage of any particular law the reader is referred to the
Constitution of his State. A simple majority of a quorum is sufficient, unless the Constitution
establishes some other rule; and where, by the Constitution, a two-thirds of three-fourths
vote is made essential to the passage of any particular class of bills, two-thids or three-
fourths of a quorum will be understood, unless the terms employed clearly indicate that this
proportion of all the members, or of all those elected, is intended. (A constitutional
requirement that the assent of two-thirds of the members elected to each house of the
legislature shall be requisite to every bill appropriating the public money or property for
localor private purposes, is mandatory, and cannot be evaded by calling a bill a "joint
resolution".)

(Footnote: "Such a requirement is too clear and too valuable to be thus frittered away."
Allen vs. Board of State Auditors, 122 Mich., 324; 47 L.R.A., 117.)

(Footnote: "By most of the constitutions either all the laws, or laws on some particular
subjects, are required to be adopted by a majority voted, or some other proportion of "all the
members elected," or of "the whole representation." These and similar phrases require all the
members to be taken into account whether present or not. Where a majority of all the
members elected is required in the passage of a law, an ineligible person is not on that
 account to be excluded in the count. (Satterloo vs. San Francisco, 23 Cal.,314.)" (Cooley on
Constitutional Limitations, Vol. 1, p. 291.)

VIII

Los recurridos no cuestionan la personalidad o derecho de accion de los recurrentes para plantear
el presente litigio. Sin embargo, en nuestras deliberaciones algunos Magistrados han expresado
dudas sbore si los recurrentestien en interes legal suficiente y adecuado para demandar y, por
tanto, para invocar nuestra jurisdiccion en el presentecaso. La duda es si el interes que alegan los
recurrentesno es mas bien el general y abstracto que tiene cualquier otro ciudadano para defender
la integridad de la Constitucion, en cuyo caso seria insuficiente para demandarante los tribunales,
los cuales, segun el consenso de las autoridades, no estan establecidos para considerar y resolver
controversias academicas y doctrinales, sino conflictos positivos, reales, en que hay algun dano y
perjuicioo amago de dano y perjuicio.

Creo que la personalidad o derecho de accion de losrecurrentes es incuestionable. En primer lugar,

11 de ellosson miembros del Congreso, y alegan que se les privo delderecho de votar al
considerarse la resolucion cuestionaday que si se les hubiese permitido votar dicha resolucion no
hubiese obtenido la sancion de las tres cuartas-partes (3/4) que requiere la Constitucion. ¿Que
mayor interes legalque este? Ellos dicen que sus votos hubieran sido decisivos, que con su
intervencion parlamentaria hubies en salvado alpaid de lo que consideran amago de una tremenda
calamidad publica — la concesion de iguales derechos a los americanos para explotar nuestros
recursos naturales y utilidades publicas. ¿No es este amago de dano, para ellos individualmente y
para el pais colectivamentem, adecuado y suficiente para crear un interes legal? En el asunto de
Coleman vs. Miller, supra, se suscito esta misma cuestion y se resolvio a favor de los recurrentes.
Como ya hemos visto, estos eran 20 Senadores del Estado de Kansas que alegaban que en la
propuesta ratificacion de la 18.ª Enmienda a la Constitucion Federal sus votos que daron abatidos
por elvoto decisivo del Teniente Gobernador. La Corte Federal declaro que esto constituia interes
legal suficiente y adecuado.

En segundo lugar, los recurrentes alegan ser ciudadanos, electores y contribuyentes de Filipinas.
Naturalmente, como tales tienen derecho a participar en la explotacion de nuestros recursos
naturales y operacion de utilidades publicas, con exclusion de los americanos y otros extranjeros.
De ello se sigue logicamente que cualguier actolegislativo que anule y abrogue esa exclusividad
afectarapersonalmente a sus derechos, amagandolos de un probable perjuicio. Esto, a mi juicio,
crea un interes legalade cuado u suficiente para litigar. Esto no es un interesmeramente academico,
abstracto. (Vease Hawke vs.Smith, 253 U.S., 221, 227; 64 Law. ed., 871, 875; 40 Sup.Ct., 495; 10
A. L. R., 1504; veanse tambien Leser vs.Garnett, 258 Ud.S., 130, 137; 66 Law. ed., 505, 571; 42
Sup.Ct., 217; Coleman vs. Miller, 122 A. L. R., 698.)

En el asunto de Hawke vs. Smith, supra, el demandante alegaba ser "ciudadano y elector del
Estado de Ohio, y comoelector y contribuyente del Condado de Hamilton, en sunombre y en el de
otros similarmente situados, presento una solicitud de prohibicion ante el tribunal del Estado para
que se prohibiera al Secretario de Estado a que gastara fondos publicos en la preparacion e
impresion de balotaspara la sumision al electorado de la 18.ª Enmienda a la Constitucion Federal
para su ratificacion. La Corte Suprema Federal fallo que el demandante tenia intereslegal y, por
tanto, personalidad y derecho de accion para demandar.

En el asunto de Leser vs. Garnett, supra, los demandantes alegaban ser electores cualificados de
Maryland y solicitaban la exclusion de ciertas mujeres del censo electoralpor el fundamento de que
la Constitucion de Maryland limitaba el sufragio a los varones y la 19.ª Enmiendaa la Constitucion
Federal no habia sido validamente ratificadaa. Lo Corte Suprema Federal fallo tambien que los
demandantes tenian interes legal suficiente y adecuado.

IX

Cuando se celebraron las audiencias en este asunto sele pregunto a uno de los abogados de los
recurridos, creo que el mismo Secretario de Justicia, cual seria el remedio legal para los
recurrentes, ya que se sostiene que en elpresente caso se trate de una materia no judicial,
injusticiable, y, que, por tanto, los tribunales nada tienen que hacer. El Secretario de Justicia
contesto: ninguno. Lounico que los recurrentes pueden hacer es esperar las elecciones y plantear el
caso directamente ante el pueblo, unico juez en las controversias de caracter politico. Esto mismose
dijo en el caso de Vera contra Aveino, supra, y reiterolo que alli he dicho sobre este argumento, a
saber:

Solo nos queda por considerar el argumento deprimente, desalentadorde que el caso que
nos ocupa no tiene remedio ni bajo la Constitucion ni bajo las leyes ordinarias. A los
recurrentes se lesdice que no tienen mas que un recurso: esperar laas elecciones y plantear
directamente la cuestion ante el pueblo elector. Si los recurrentes tienen razon, el pueblo les
reivindicara eligiendoles o elevandoa su partido al poder, repudiando, en cambio, a los
recurridoso a su partido. Algunas cosas se podrian decir acerca de este argumento. Se
podria decir, por ejemplo, que el remedio no es expeditoni adecuado porque la mayoria de
los recurridos han sido elegidos para un periodo de seis anos, asi que no se les podra exigir
ninguna responsabilidad por tan largo tiempo. Se podria decir tambien que en una eleccion
politica entran muchos factores, y es posible quela cuestion que se discute hoy, con ser tan
fervida y tan palpitante, quede, cuando llegue el caso, obscurecida por otros "issues"
maspresionantes y decisivos. Tambien se podria decir que, independientemente de la
justicia de su cuasa, un partido minoritario siemprelucha con desventaja contra el partido
mayoritario.

Pero, a nuestro juicio, la mejor contestacion al argumento esque no cabe concebir que los
redactores de la Constitucion filipina hayan dejado en medio de nuestro sistema de gobierno
un peligros ovacio en donde quedan paralizados los resortes de la Constituciony de la ley, y
el ciudadano queda inerme, impotente frente a lo que el considera flagrante transgresion de
sus derechos. Los redactoresde la Constitucion conocian muy bien nuestro sistema de
gobierno — sistema presidencial. Sabian muy bien que este no tiene la flexibilidaddel tipo
ingles — el parlamentario. En Inglaterra y en lospaises que siguen su sistema hay una
magnifica valvula de seguridad politica; cuando surge una grave crisis, de esas que
sacudenlos cimientos de la nacion, el parlamento se disuelve y se convocanelleciones
generales para que el pueblo decida los grandes "issues" del dia. Asi se consuman
verdaderas revoluciones, sin sangre, sin violencia. El sistema presidential no tiene esa
valvula. El periodo que media de eleccion a eleccion es inflexible. Entre nosotros,
porejemplo, el periodo es de seis años para el Senado, y de cuatro años para la Camara de
Representantes y los gobiernos provinciales y municipales. Solamente se celebran
elecciones especiales para cubrir vacantes que ocurran entre unas elecciones generalesy
otras. Se comprendera facilmente que bajo un sistema asi esharto peligroso, es jugar con
fuego el posibilitar situaciones dondeel individuo y el pueblo no puedan buscar el amparo de
la Constitucion y de las leyes, bajo procesos ordenados y expeditos, paraprotegar sus
derechos. (Vera contra Avelino, pags. 363, 364.)

Fued Jefferson quien dijo que como medida de higiene politicaera conveniente que el pueblo
americano tuviera una revolucion cada veinte años. Parece que el gran democratadijo esto no por el
simple prurito de jugar con laparadoja, con la frase, sino convencido de que la revoluciones el mejor
antidoto para la tirania o los amagos de tirania.

Grande como es el respeto que merecen las opiniones delinmortal autor de la Decaraction de
Independencia, creoque la revolucion es siempre revolucion, la violencia es siempre violencia: caos,
confusion, desquiciamiento de los resortes politicos y sociales, derramamiento de sangre, perdidade
vidas y haciendas, etcetera, etcetera. Asi que normalmente ninguno puede desear para su pais la
violencia, aun en nombre de la vitalidad, de la salud publica.

Estoy convencido de que el mejor ideal politico es la revolucionsin sangre, esa que no pocas veces
se ha consumado v. gr. en la historia contemporanea de Inglaterra, yaun de America misma. Y ese
ideal es perfectamente realizable permitiendo el amplio juego de la Constitucion y delas leyes,
evitando pretextos a la violencia, y no posibilitando situaciones de desamparo y desesperacion.

Por eso creo sinceramente que la mejor politica, la mejordoctrina judicial es la que en todo tiempo
encauza y fomentalos procesos ordenados de la Constitucion y de la ley.

Footnotes

PERFECTO, J., dissenting:

1 Omitted.

BRIONES, M., con quien esta conforme FERIA, M., dissidente:

1 Jose O. Vera, Ramon Diokno y Jose E. Romero.

2Senadores: Alejo Mabanag, Carlos P. Garcia, Eulogio Rodriguez, Tomas Confesor, Tomas
Cabili, Jose O. Vera, Ramon Diokno, y Jose E. Romero.

Representantes: Juvenal Almendras, Paulino Alonzo, Apolinario Cabigon, Floro Crisologo,

Gabriel Dunuan, Cosme B. Garcia, Agustin Y. Kintanar, Vicente Logarta, Francisco A.
Perfecto, Cipriano P. Primicias, Nicolas Rafols, Jose V. Rodriguez, Juan de G. Rodriguez,
Felixberto M. Serrano, Conrado Singson, George K. Tait, y Leandro A. Tojong.

Presidentes de Partido: Jose O. Vera, Jesus G. Barrera, Emilio Javier y Sofronio Quimson,
Nacionalista Party, Democratic Alliance, Popular Front y Philippine Youth Party,
respectivamente.

3Comision de Elecciones: Jose Lopez Vito, Francisco Enage y Vicente de Vera,

respectivamente.

Marciano Guevara, Paciano Dizon y Pablo Lucas, Tesorero, Auditor y Director de Imprenta,
respectivamente.

4La politica de nacionalizacion de la recursos naturales yutilidades publicas incorporada en

nuestra Constitucion no es unapolitica nueva, sino que trae su origen de nuestro pasado
remoto, dela historia colonial misma de España en Filipinas. Los primeros conflictos de los
filipinos con los conquistado es tenian por causala propiedad de la tierra; los filipinos se
esforzaban por reivindicarel dominio del suelo que creian detentado por los colonizadores.
Estos conflictos fueron agravandose con el tiempo condensan dose enla formidable cuestion
agraria que en las postrimerias del siglo diecinueve fue enm gran parte la causa de la
revolucion contra España. Lass campanas de Rizal y de los laborantes, y el Katipunan de
Bonifacio tomaron gran parte de su fuerza, de su valor combativo, delos agravios
provocados por la cuestion agraria. La Liga Filipinade Rizal estaba fundamentalmente
basada en un ideario economico nacionalista, de control y dominio sobre la riqueza y
recursos delpais.

"Cuando America establecio aqui su soberania su mayor acierto consistio en echar los
cimientos de su politica fundamental de 'Filipinas para los filipinos.' Primero el Presidente
McKinley, y despues los Presidentes Taft y Wilson, consolidaron esta politica. El
congresoaprobo leyes tendentes a la conservacion de terrenos publicos yrecursos naturales,
entre ellas la Ley de 1.º de Julio de 1902 conocida por Ley Cooper. En estas leyes se
limitaba y restringia la adquisiciony uso de bienes de dominio publico por particulares.

"Una pruebaf palmaria del celo del Congreso americano por mantener rigidamente la politica
de conservacion del patrimonio delos filipinos fue la investigacion congresional provocada
por el Congresista Martin, de Colorado, en relacion con la venta de terrenos delos frailes en
Mindoro, a una compañia americana en exceso de las 1,024 hectareas fijadas en las leyes
de terrenos publicos. Esto diolugar a uno de los episodios mas famosos en la carrera del
Comisionado Residente Quezon. Este relata su campaña en su autobiografia 'The Good
Fight,' a saber:

"'My next address to Congress took place when a congressional investigation was being
urged by Congressman Martin of Colorado to determine how the Government of the
Philippines was carrying out the policy laid down by Congress, that limited to 1024 acres the
maximum area of government land that could be sold to corporations or individuals. This law
had been enacted soon after the United States has taken the Philippines to prevent the
exploitation of the Filipino people by capitalists, whether foreigners or natives. American
capital interested in the sugar industry has acquired two very large tracts of land which the
Philippine Government had bought from the friars with the funds bonds issued under the
security of the Philippine Government. The avowed purpose in buying these extensive
properties from the Spanish religious orders was to resell them in small lots to Filipino
farmers, and thus to do away with absentee landlordism which had been the most serious
cause of the Philippine rebellion against Spain. The reason given for the sale of these lands
to American capital by the American official in charge of the execution of the congressional
policy were two-fold: First, that the act of Congress referred only to lands of the public
domain not to lands acquired by the Government in some other way. And second, that the
sale of these lands was made in order to establish the sugar industry in the Philippines on a
truly grand scale under modern methods, as had been done in Cuba. It was further alleged
that such a method would bring great prosperity to the Philippines.

"'I spoke in support of the proposed investigation, contending that the establishment of the
sugar industry under those conditions would mean the debasement of the Filipinos into mere
peons. 'Moreover,' I argued, 'large investments of American capital in the Philippines will
inevitably result in the permanent retention of the Philippines by the United States.' At the
climax of ny speech I roared: If the preordained fate of my country is either to be a subject
people but rich, or free but poor, I am unqualifiedly for the latter.'
"'The investigation was ordered by the House of Representatives, and although the sales
already made were not annulled, no further sales were made in defiance of the
Congressional Act. (The Good Fight, by President Quezon, pp. 117-119.)'

"Para implementar la politica de nacionalizacion el gobierno filipino bajo la Ley Jones y la

Ley del Commonwealth fundo con una gruesa capitalizacion las corporaciones economicas
del Estado comoel Philippine National Bank, National Development Company, National
Cement Company, National Power Corporation, y otras.

"Para reglamentar y supervisar las utilidades y servicios publicos se creo la Comision de

Servicios Publicos."
G.R. No. L-56350 April 2, 1981

SAMUEL C. OCCENA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL
TREASURER, THE DIRECTOR OF PRINTING, respondents.

G.R. No. L-56404 April 2, 1981

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T.

DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.:

The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa
Resolutions 1proposing constitutional amendments, goes further than merely assailing their alleged
constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the
Philippine Bar and former delegates to the 1971 Constitutional Convention that framed the present
Constitution, are suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion
that the 1973 Constitution is not the fundamental law, the Javellana 2 ruling to the contrary
notwithstanding. To put it at its mildest, such an approach has the arresting charm of novelty – but
nothing else. It is in fact self defeating, for if such were indeed the case, petitioners have come to the
wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. To contend
otherwise as was done here would be, quite clearly, an exercise in futility. Nor are the arguments of
petitioners cast in the traditional form of constitutional litigation any more persuasive. For reasons to
be set forth, we dismiss the petitions.

The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and
13 respectively, respondents were required to answer each within ten days from notice. 5 There was
a comment on the part of the respondents. Thereafter, both cases were set for hearing and were
duly argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for respondents.
With the submission of pertinent data in amplification of the oral argument, the cases were deemed
submitted for decision.

It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.

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

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose
amendments and how it may be exercised. More specifically as to the latter, the extent of the
changes that may be introduced, the number of votes necessary for the validity of a proposal, and
the standard required for a proper submission. As was stated earlier, petitioners were unable to
demonstrate that the challenged resolutions are tainted by unconstitutionality.

(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable
provision in the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus:
"The Interim Batasang Pambansa shall have the same powers and its Members shall have the same
functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly
and the regular National Assembly and the Members thereof." 14One of such powers is precisely that
of proposing amendments. The 1973 Constitution in its Transitory Provisions vested
the Interim National Assembly with the power to propose amendments upon special call by the
Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article
on Amendments. 15When, therefore, the Interim Batasang Pambansa, upon the call of the President
and Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue Of such
impotence Its authority to do so is clearly beyond doubt. It could and did propose the amendments
embodied in the resolutions now being assailed. It may be observed parenthetically that as far as
petitioner Occena is Concerned, the question of the authority of the Interim Batasang Pambansa to
propose amendments is not new. In Occena v. Commission on Elections, 16 filed by the same
petitioner, decided on January 28, 1980, such a question was involved although not directly passed
upon. To quote from the opinion of the Court penned by Justice Antonio in that case: "Considering
that the proposed amendment of Section 7 of Article X of the Constitution extending the retirement of
members of the Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70)
years is but a restoration of the age of retirement provided in the 1935 Constitution and has been
intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the
mass media, it cannot, therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment." 17

(2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive
in character that they go far beyond the limits of the authority conferred on the Interim Batasang
Pambansa as Successor of the Interim National Assembly. For them, what was done was to revise
and not to amend. It suffices to quote from the opinion of Justice Makasiar, speaking for the Court,
in Del Rosario v. Commission on Elections 18 to dispose of this contention. Thus: "3. And whether the
Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the
present Constitution and propose an entirely new Constitution based on an Ideology foreign to the
democratic system, is of no moment; because the same will be submitted to the people for
ratification. Once ratified by the sovereign people, there can be no debate about the validity of the
new Constitution. 4. The fact that the present Constitution may be revised and replaced with a new
one ... is no argument against the validity of the law because 'amendment' includes the 'revision' or
total overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in
part or revised or totally changed would become immaterial the moment the same is ratified by the
sovereign people." 19 There is here the adoption of the principle so well-known in American decisions
as well as legal texts that a constituent body can propose anything but conclude nothing. 20 We are
not disposed to deviate from such a principle not only sound in theory but also advantageous in
practice.

(3) That leaves only the questions of the vote necessary to propose amendments as well as the
standard for proper submission. Again, petitioners have not made out a case that calls for a
judgment in their favor. The language of the Constitution supplies the answer to the above
questions. The Interim Batasang Pambansa, sitting as a constituent body, can propose
amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition
to assert that the three-fourth votes required when it sits as a legislative body applies as well when it
has been convened as the agency through which amendments could be proposed. That is not a
requirement as far as a constitutional convention is concerned. It is not a requirement either when,
as in this case, the Interim Batasang Pambansa exercises its constituent power to propose
amendments. Moreover, even on the assumption that the requirement of three- fourth votes applies,
such extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an
amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own
a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No.
2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a
vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the
Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the alleged infirmity?
As to the requisite standard for a proper submission, the question may be viewed not only from the
standpoint of the period that must elapse before the holding of the plebiscite but also from the
standpoint of such amendments having been called to the attention of the people so that it could not
plausibly be maintained that they were properly informed as to the proposed changes. As to the
period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to
the applicable provision: "Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months
after the approval of such amendment or revision." 21 The three resolutions were approved by
the Interim Batasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In
the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the
90-day period provided by the Constitution. Thus any argument to the contrary is unavailing. As for
the people being adequately informed, it cannot be denied that this time, as in the cited 1980
Occena opinion of Justice Antonio, where the amendment restored to seventy the retirement age of
members of the judiciary, the proposed amendments have "been intensively and extensively
discussed at the Interim Batasang Pambansa, as well as through the mass media, [ so that ] it
cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the
proposed amendment [ s ]." 22

WHEREFORE, the petitions are dismissed for lack of merit. No costs.

Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera,
JJ., concur.

Abad Santos, J., is on leave.

Separate Opinions
TEEHANKEE, J., dissenting:

I vote to give due course to the petitions at bar and to grant the application for a temporary
restraining order enjoining the plebiscite scheduled for April 7, 1981.

1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of the October
1976 amendments proposals to the 1973 Constitution for not having been proposed nor adopted in
accordance with the mandatory provisions thereof, as restated by me in Hidalgo vs. Marcos 2 and De
la Llana vs. Comelec 3 , questioning the validity of the December 17, 1977 referendum – exercise as
to the continuance in office as incumbent President and to be Prime Minister after the organization of
the Interim Batasang Pambansa as provided for in Amendment No. 3 of the 1976 Amendments, I am
constrained to dissent from the majority decision of dismissal of the petitions.

I had held in Sanidad that the transcendental constituent power to propose and approve
amendments to the Constitution as well as to set up the machinery and prescribe the procedure for
the ratification of the amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and that so long as the regular
National Assembly provided for in Article VIII of the Constitution had not come to existence and the
proposals for constitutional amendments were now deemed necessary to be discussed and adopted
for submittal to the people, strict adherence with the mandatory requirements of the amending
process as provided in the Constitution must be complied with. This means, under the prevailing
doctrine of Tolentino vs. Comelec 4 that the proposed amendments to be valid must come from the
constitutional agency vested with the constituent power to do so, i.e. in the Interim National
Assembly provided in the Transitory Article XVII which would then have to be convened and not from
the executive power as vested in the President (Prime Minister) from whom such constituent power
has been withheld.

2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of Tolentino, the
October 1976 constitutional amendments which created the Interim Batasang Pambansa in lieu of
the Interim National Assembly were invalid since as ruled by the Court therein, constitutional
provisions on amendments "dealing with the procedure or manner of amending the fundamental law
are binding upon the Convention and the other departments of the government (and) are no less
binding upon the people" and "the very Idea of deparcing from the fundamental law is anachronistic
in the realm of constitutionalism and repugnant to the essence of the rule of law." The proposed
amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the
invalid October, 1976 amendments must necessarily suffer from the same Congenital infirmity.

3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I reiterate
my stand in Sanidad that the doctrine of fair and proper submission firs enunciated by a simple
majority of six Justices (of an eleven member Court prior to the 1973 Constitution which increased
the official composition of the Court to fifteen) in Gonzales vs. Comelec 5 and subsequently officially
adopted by the required constitutional two-thirds majority vote of the Court (of eight votes, then)
in Tolentino is fully applicable in the case at bar. The three resolutions proposing complex,
complicated and radical amendments of our very structure of government were considered and
approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 27,
1981. It set the date of the plebiscite for thirty-nine days later on April 7, 1981 which is totally
inadequate and far short of the ninety-day period fixed by the Constitution for submittal to the people
to "sufficiently inform them of the amendments to be voted upon, to conscientiously deliberate
thereon and to express their will in a genuine manner." 6
4. "The minimum requirements that must be met in order that there can be a proper submission to
the people of a proposed constitutional amendment" as stated by retired Justice Conrado V.
Sanchez in his separate opinion in Gonzales bears repeating as follows: "... we take the view that
the words 'submitted to the people for their ratification,' if construed in the light of the nature of the
Constitution – a fundamental charter that is legislation direct from the people, an expression of their
sovereign will – is that it can only be amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to
vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly insidious influences. We
believe the word 'submitted' can only mean that the government, within its maximum capabilities,
should strain every short to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. ... What the Constitution in effect directs
is that the government, in submitting an amendment for ratification, should put every instrumentality
or agency within its structural framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how prejudicial it is to them, then so
be it. For the people decree their own fate."

Justice Sanchez therein ended the passage with an apt citation that "... The great men who builded
the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge
Cooley, who has said 'A good Constitution should be beyond the reach of temporary excitement and
popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the
people; not to the whim of the people, or the thought evolved in excitement, or hot blood, but the
sober second thought, which alone if the government is to be safe, can be allowed efficacy ...
Changes in government are to be feard unless benefit is certain.' As Montaign says: 'All great
mutation shake and disorder a state. Good does not necessarily succeed evil; another evil may
succeed and a worse."'

Separate Opinions

TEEHANKEE, J., dissenting:

I vote to give due course to the petitions at bar and to grant the application for a temporary
restraining order enjoining the plebiscite scheduled for April 7, 1981.

1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of the October
1976 amendments proposals to the 1973 Constitution for not having been proposed nor adopted in
accordance with the mandatory provisions thereof, as restated by me in Hidalgo vs. Marcos 2 and De
la Llana vs. Comelec 3 , questioning the validity of the December 17, 1977 referendum – exercise as
to the continuance in office as incumbent President and to be Prime Minister after the organization of
the Interim Batasang Pambansa as provided for in Amendment No. 3 of the 1976 Amendments, I am
constrained to dissent from the majority decision of dismissal of the petitions.

I had held in Sanidad that the transcendental constituent power to propose and approve
amendments to the Constitution as well as to set up the machinery and prescribe the procedure for
the ratification of the amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and that so long as the regular
National Assembly provided for in Article VIII of the Constitution had not come to existence and the
proposals for constitutional amendments were now deemed necessary to be discussed and adopted
for submittal to the people, strict adherence with the mandatory requirements of the amending
process as provided in the Constitution must be complied with. This means, under the prevailing
doctrine of Tolentino vs. Comelec 4 that the proposed amendments to be valid must come from the
constitutional agency vested with the constituent power to do so, i.e. in the Interim National
Assembly provided in the Transitory Article XVII which would then have to be convened and not from
the executive power as vested in the President (Prime Minister) from whom such constituent power
has been withheld.

2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of Tolentino, the
October 1976 constitutional amendments which created the Interim Batasang Pambansa in lieu of
the Interim National Assembly were invalid since as ruled by the Court therein, constitutional
provisions on amendments "dealing with the procedure or manner of amending the fundamental law
are binding upon the Convention and the other departments of the government (and) are no less
binding upon the people" and "the very Idea of deparcing from the fundamental law is anachronistic
in the realm of constitutionalism and repugnant to the essence of the rule of law." The proposed
amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the
invalid October, 1976 amendments must necessarily suffer from the same Congenital infirmity.

3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I reiterate
my stand in Sanidad that the doctrine of fair and proper submission firs enunciated by a simple
majority of six Justices (of an eleven member Court prior to the 1973 Constitution which increased
the official composition of the Court to fifteen) in Gonzales vs. Comelec 5 and subsequently officially
adopted by the required constitutional two-thirds majority vote of the Court (of eight votes, then)
in Tolentino is fully applicable in the case at bar. The three resolutions proposing complex,
complicated and radical amendments of our very structure of government were considered and
approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 27,
1981. It set the date of the plebiscite for thirty-nine days later on April 7, 1981 which is totally
inadequate and far short of the ninety-day period fixed by the Constitution for submittal to the people
to "sufficiently inform them of the amendments to be voted upon, to conscientiously deliberate
thereon and to express their will in a genuine manner." 6

4. "The minimum requirements that must be met in order that there can be a proper submission to
the people of a proposed constitutional amendment" as stated by retired Justice Conrado V.
Sanchez in his separate opinion in Gonzales bears repeating as follows: "... we take the view that
the words 'submitted to the people for their ratification,' if construed in the light of the nature of the
Constitution – a fundamental charter that is legislation direct from the people, an expression of their
sovereign will – is that it can only be amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to
vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly insidious influences. We
believe the word 'submitted' can only mean that the government, within its maximum capabilities,
should strain every short to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. ... What the Constitution in effect directs
is that the government, in submitting an amendment for ratification, should put every instrumentality
or agency within its structural framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how prejudicial it is to them, then so
be it. For the people decree their own fate."

Justice Sanchez therein ended the passage with an apt citation that "... The great men who builded
the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge
Cooley, who has said 'A good Constitution should be beyond the reach of temporary excitement and
popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the
people; not to the whim of the people, or the thought evolved in excitement, or hot blood, but the
sober second thought, which alone if the government is to be safe, can be allowed efficacy ...
Changes in government are to be feard unless benefit is certain.' As Montaign says: 'All great
mutation shake and disorder a state. Good does not necessarily succeed evil; another evil may
succeed and a worse."'
G.R. No. L-28196 November 9, 1967

RAMON A. GONZALES, petitioner,

vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR
GENERAL, respondents.

G.R. No. L-28224 November 9, 1967

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae
Office of the Solicitor General for respondents.

No. 28224:
Salvador Araneta for petitioner.
Office of the Solicitor General for respondent.

CONCEPCION, C.J.:

G. R. No. L-28196 is an original action for prohibition, with preliminary injunction.

Petitioner therein prays for judgment:

1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from
performing any act that will result in the holding of the plebiscite for the ratification of the
constitutional amendments proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of
Congress of the Philippines, approved on March 16, 1967; (b) the Director of Printing from printing
ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from passing in audit any
disbursement from the appropriation of funds made in said Republic Act No. 4913; and

2) declaring said Act unconstitutional and void.

The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives
passed the following resolutions:

1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the
Constitution of the Philippines, be amended so as to increase the membership of the House of
Representatives from a maximum of 120, as provided in the present Constitution, to a maximum of
180, to be apportioned among the several provinces as nearly as may be according to the number of
their respective inhabitants, although each province shall have, at least, one (1) member;

2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the convention

to be composed of two (2) elective delegates from each representative district, to be "elected in the
general elections to be held on the second Tuesday of November, 1971;" and
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as
to authorize Senators and members of the House of Representatives to become delegates to the
aforementioned constitutional convention, without forfeiting their respective seats in Congress.

Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967,
became Republic Act No. 4913, providing that the amendments to the Constitution proposed in the
aforementioned Resolutions No. 1 and 3 be submitted, for approval by the people, at the general
elections which shall be held on November 14, 1967.

The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967,
the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel
for the Philippine Constitution Association — hereinafter referred to as the PHILCONSA — were
allowed to argue as amici curiae. Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise
prayed that the decision in this case be deferred until after a substantially identical case brought by
said organization before the Commission on Elections,1 which was expected to decide it any time,
and whose decision would, in all probability, be appealed to this Court — had been submitted
thereto for final determination, for a joint decision on the identical issues raised in both cases. In fact,
on October 31, 1967, the PHILCONSA filed with this Court the petition in G. R. No. L-28224, for
review by certiorari of the resolution of the Commission on Elections2 dismissing the petition therein.
The two (2) cases were deemed submitted for decision on November 8, 1967, upon the filing of the
answer of respondent, the memorandum of the petitioner and the reply memorandum of respondent
in L-28224.

Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a
voter. He claims to have instituted case L-28196 as a class unit, for and in behalf of all citizens,
taxpayers, and voters similarly situated. Although respondents and the Solicitor General have filed
an answer denying the truth of this allegation, upon the ground that they have no knowledge or
information to form a belief as to the truth thereof, such denial would appear to be a perfunctory one.
In fact, at the hearing of case L-28196, the Solicitor General expressed himself in favor of a judicial
determination of the merits of the issued raised in said case.

The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing
under the laws of the Philippines, and a civic, non-profit and non-partisan organization the objective
of which is to uphold the rule of law in the Philippines and to defend its Constitution against erosions
or onslaughts from whatever source. Despite his aforementioned statement in L-28196, in his
answer in L-28224 the Solicitor General maintains that this Court has no jurisdiction over the
subject-matter of L-28224, upon the ground that the same is "merely political" as held in Mabanag
vs. Lopez Vito.3 Senator Arturo M. Tolentino, who appeared before the Commission on Elections and
filed an opposition to the PHILCONSA petition therein, was allowed to appear before this Court and
objected to said petition upon the ground: a) that the Court has no jurisdiction either to grant the
relief sought in the petition, or to pass upon the legality of the composition of the House of
Representatives; b) that the petition, if granted, would, in effect, render in operational the legislative
department; and c) that "the failure of Congress to enact a valid reapportionment law . . . does not
have the legal effect of rendering illegal the House of Representatives elected thereafter, nor of
rendering its acts null and void."

JURISDICTION

As early as Angara vs. Electoral Commission,4 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 vs. Lopez Vito,5 this Court
characterizing the issue submitted thereto as a political one, declined to pass upon the question
whether or not a given number of votes cast in Congress in favor of a proposed amendment to the
Constitution — which was being submitted to the people for ratification — satisfied the three-fourths
vote requirement of the fundamental law. The force of this precedent has been weakened, however,
by Suanes vs. Chief Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada vs.
Cuenco,8 and Macias vs. Commission on Elections.9In 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 a quorum in the Senate; in the third, we nullified the election, by
Senators belonging to the party having the largest number of votes in said chamber, purporting to
act on behalf of the party having the second largest number of votes therein, of two (2) Senators
belonging to the first party, as members, for the second party, of the, Senate Electoral Tribunal; and
in the fourth, we declared unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives, upon the ground that the apportionment
had not been made as may be possible according to the number of inhabitants of each province.
Thus we rejected the theory, advanced in these four (4) cases, that the issues therein raised were
political questions the determination of which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is not included in
the general grant of legislative powers to Congress.10 It is part of the inherent powers of the
people — as the repository of sovereignty in a republican state, such as ours11 — 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.12 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 a constituent assembly. When acting as such, the
members of Congress derive their authority from the Constitution, unlike the people, when
performing the same function,13 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,14 the power to declare a
treaty unconstitutional,15 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 essentially justiciable, not political, and, hence, subject to judicial review,
and, to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez
Vito,16 the latter should be deemed modified accordingly. The Members of the Court are unanimous
on this point.

THE MERITS

Section 1 of Article XV of the Constitution, as amended, 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.

Pursuant to this provision, amendments to the Constitution may be proposed, either by Congress, or
by a convention called by Congress for that purpose. In either case, the vote of "three-fourths of all
the members of the Senate and of the House of Representatives voting separately" is necessary.
And, "such amendments shall be valid as part of" the "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."

In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote of
three-fourths of all the members of the Senate and of the House of Representatives voting
separately. This, notwithstanding, it is urged that said resolutions are null and void because:

1. The Members of Congress, which approved the proposed amendments, as well as the resolution
calling a convention to propose amendments, are, at best, de facto Congressmen;

2. Congress may adopt either one of two alternatives propose — amendments or call a convention
therefore but may not avail of both — that is to say, propose amendment and call a convention — at
the same time;

3. The election, in which proposals for amendment to the Constitution shall be submitted for
ratification, must be a special election, not a general election, in which officers of the national and
local governments — such as the elections scheduled to be held on November 14, 1967 — will be
chosen; and

4. The spirit of the Constitution demands that the election, in which proposals for amendment shall
be submitted to the people for ratification, must be held under such conditions — which, allegedly,
do not exist — as to give the people a reasonable opportunity to have a fair grasp of the nature and
implications of said amendments.

Legality of Congress and Legal Status of the Congressmen

The first objection is based upon Section 5, Article VI, of the Constitution, which provides:

The House of Representatives shall be composed of not more than one hundred and twenty
Members who shall be apportioned among the several provinces as nearly as may be
according to the number of their respective inhabitants, but each province shall have at least
one Member. The Congress shall by law make an apportionment within three years after the
return of every enumeration, and not otherwise. Until such apportionment shall have been
made, the House of Representatives shall have the same number of Members as that fixed
by law for the National Assembly, who shall be elected by the qualified electors from the
present Assembly districts. Each representative district shall comprise, as far as practicable,
contiguous and compact territory.

It is urged that the last enumeration or census took place in 1960; that, no apportionment having
been made within three (3) years thereafter, the Congress of the Philippines and/or the election of its
Members became illegal; that Congress and its Members, likewise, became a de facto Congress
and/or de facto congressmen, respectively; and that, consequently, the disputed Resolutions,
proposing amendments to the Constitution, as well as Republic Act No. 4913, are null and void.
It is not true, however, that Congress has not made an apportionment within three years after the
enumeration or census made in 1960. It did actually pass a bill, which became Republic Act No.
3040,17 purporting to make said apportionment. This Act was, however, declared unconstitutional,
upon the ground that the apportionment therein undertaken had not been made according to the
number of inhabitants of the different provinces of the Philippines.18

Moreover, we are unable to agree with the theory that, in view of the failure of Congress to make a
valid apportionment within the period stated in the Constitution, Congress became an
"unconstitutional Congress" and that, in consequence thereof, the Members of its House of
Representatives are de facto officers. The major premise of this process of reasoning is that the
constitutional provision on "apportionment within three years after the return of every enumeration,
and not otherwise," is mandatory. The fact that Congress is under legal obligation to make said
apportionment does not justify, however, the conclusion that failure to comply with such obligation
rendered Congress illegal or unconstitutional, or that its Members have become de facto officers.

It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a valid
apportionment as required in said fundamental law. The effect of this omission has been envisioned
in the Constitution, pursuant to which:

. . . Until such apportionment shall have been made, the House of Representatives shall
have the same number of Members as that fixed by law for the National Assembly, who shall
be elected by the qualified electors from the present Assembly districts. . . . .

The provision does not support the view that, upon the expiration of the period to make the
apportionment, a Congress which fails to make it is dissolved or becomes illegal. On the contrary, it
implies necessarily that Congress shall continue to function with the representative districts existing
at the time of the expiration of said period.

It is argued that the above-quoted provision refers only to the elections held in 1935. This theory
assumes that an apportionment had to be made necessarily before the first elections to be held after
the inauguration of the Commonwealth of the Philippines, or in 1938.19 The assumption, is, however,
unwarranted, for there had been no enumeration in 1935, and nobody could foretell when it would be
made. Those who drafted and adopted the Constitution in 1935 could be certain, therefore, that the
three-year period, after the earliest possible enumeration, would expire after the elections in 1938.

What is more, considering that several provisions of the Constitution, particularly those on the
legislative department, were amended in 1940, by establishing a bicameral Congress, those who
drafted and adopted said amendment, incorporating therein the provision of the original Constitution
regarding the apportionment of the districts for representatives, must have known that the three-year
period therefor would expire after the elections scheduled to be held and actually held in 1941.

Thus, the events contemporaneous with the framing and ratification of the original Constitution in
1935 and of the amendment thereof in 1940 strongly indicate that the provision concerning said
apportionment and the effect of the failure to make it were expected to be applied to conditions
obtaining after the elections in 1935 and 1938, and even after subsequent elections.

Then again, since the report of the Director of the Census on the last enumeration was submitted to
the President on November 30, 1960, it follows that the three-year period to make the apportionment
did not expire until 1963, or after the Presidential elections in 1961. There can be no question,
therefore, that the Senate and the House of Representatives organized or constituted on December
30, 1961, were de jure bodies, and that the Members thereof were de jure officers. Pursuant to the
theory of petitioners herein, upon expiration of said period of three years, or late in 1963, Congress
became illegal and its Members, or at least, those of the House of Representatives, became illegal
holder of their respective offices, and were de facto officers.

Petitioners do not allege that the expiration of said three-year period without a reapportionment, had
the effect of abrogating or repealing the legal provision creating Congress, or, at least, the House of
Representatives, and are not aware of any rule or principle of law that would warrant such
conclusion. Neither do they allege that the term of office of the members of said House automatically
expired or that they ipso facto forfeited their seats in Congress, upon the lapse of said period for
reapportionment. In fact, neither our political law, nor our law on public officers, in particular,
supports the view that failure to discharge a mandatory duty, whatever it may be, would
automatically result in the forfeiture of an office, in the absence of a statute to this effect.

Similarly, it would seem obvious that the provision of our Election Law relative to the election of
Members of Congress in 1965 were not repealed in consequence of the failure of said body to make
an apportionment within three (3) years after the census of 1960. Inasmuch as the general elections
in 1965 were presumably held in conformity with said Election Law, and the legal provisions creating
Congress — with a House of Representatives composed of members elected by qualified voters of
representative districts as they existed at the time of said elections — remained in force, we can not
see how said Members of the House of Representatives can be regarded as de facto officers owing
to the failure of their predecessors in office to make a reapportionment within the period
aforementioned.

Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-
President, the Justices of the Supreme Court and the Auditor General for, inter alia, culpable
violation of the Constitution,20 the enforcement of which is, not only their mandatory duty, but also,
their main function. This provision indicates that, despite the violation of such mandatory duty, the
title to their respective offices remains unimpaired, until dismissal or ouster pursuant to a judgment
of conviction rendered in accordance with Article IX of the Constitution. In short, the loss of office or
the extinction of title thereto is not automatic.

Even if we assumed, however, that the present Members of Congress are merely de facto officers, it
would not follow that the contested resolutions and Republic Act No. 4913 are null and void. In fact,
the main reasons for the existence of the de facto doctrine is that public interest demands that acts
of persons holding, under color of title, an office created by a valid statute be, likewise, deemed valid
insofar as the public — as distinguished from the officer in question — is concerned.21 Indeed,
otherwise, those dealing with officers and employees of the Government would be entitled to
demand from them satisfactory proof of their title to the positions they hold, before dealing with them,
or before recognizing their authority or obeying their commands, even if they should act within the
limits of the authority vested in their respective offices, positions or employments.22 One can imagine
this great inconvenience, hardships and evils that would result in the absence of the de
facto doctrine.

As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be
contested except directly, by quo warranto proceedings. Neither may the validity of his acts be
questioned upon the ground that he is merely a de facto officer.24 And the reasons are obvious: (1) it
would be an indirect inquiry into the title to the office; and (2) the acts of a de facto officer, if within
the competence of his office, are valid, insofar as the public is concerned.

It is argued that the foregoing rules do not apply to the cases at bar because the acts therein
involved have not been completed and petitioners herein are not third parties. This pretense is
untenable. It is inconsistent with Tayko vs. Capistrano.25 In that case, one of the parties to a suit
being heard before Judge Capistrano objected to his continuing to hear the case, for the reason that,
meanwhile, he had reached the age of retirement. This Court held that the objection could not be
entertained, because the Judge was at least, a de facto Judge, whose title can not be assailed
collaterally. It should be noted that Tayko was not a third party insofar as the Judge was concerned.
Tayko was one of the parties in the aforementioned suit. Moreover, Judge Capistrano had not, as
yet, finished hearing the case, much less rendered decision therein. No rights had vested in favor of
the parties, in consequence of the acts of said Judge. Yet, Tayko's objection was overruled.
Needless to say, insofar as Congress is concerned, its acts, as regards the Resolutions herein
contested and Republic Act No. 4913, are complete. Congress has nothing else to do in connection
therewith.

The Court is, also, unanimous in holding that the objection under consideration is untenable.

Available Alternatives to Congress

Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose amendments to
the Constitution or call a convention for that purpose, but it can not do both, at the same time. This
theory is based upon the fact that the two (2) alternatives are connected in the Constitution by the
disjunctive "or." Such basis is, however, a weak one, in the absence of other circumstances — and
none has brought to our attention — supporting the conclusion drawn by the amicus curiae. In fact,
the term "or" has, oftentimes, been held to mean "and," or vice-versa, when the spirit or context of
the law warrants it.26

It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional
provision on Congress, to be submitted to the people for ratification on November 14, 1967, whereas
R. B. H. No. 2 calls for a convention in 1971, to consider proposals for amendment to the
Constitution, in general. In other words, the subject-matter of R. B. H. No. 2 is different from that of R
B. H. Nos. 1 and 3. Moreover, the amendments proposed under R. B. H. Nos. 1 and 3, will be
submitted for ratification several years before those that may be proposed by the constitutional
convention called in R. B. H. No. 2. Again, although the three (3) resolutions were passed on the
same date, they were taken up and put to a vote separately, or one after the other. In other words,
they were not passed at the same time.

In any event, we do not find, either in the Constitution, or in the history thereof anything that would
negate the authority of different Congresses to approve the contested Resolutions, or of the same
Congress to pass the same in, different sessions or different days of the same congressional
session. And, neither has any plausible reason been advanced to justify the denial of authority to
adopt said resolutions on the same day.

Counsel ask: Since Congress has decided to call a constitutional convention to propose
amendments, why not let the whole thing be submitted to said convention, instead of, likewise,
proposing some specific amendments, to be submitted for ratification before said convention is held?
The force of this argument must be conceded. but the same impugns the wisdom of the action taken
by Congress, not its authority to take it. One seeming purpose thereof to permit Members of
Congress to run for election as delegates to the constitutional convention and participate in the
proceedings therein, without forfeiting their seats in Congress. Whether or not this should be done is
a political question, not subject to review by the courts of justice.

On this question there is no disagreement among the members of the Court.

May Constitutional Amendments Be Submitted for Ratification in a General Election?

Article XV of the Constitution provides:

 . . . 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 contention 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.

There is in this provision nothing to indicate that the "election" therein referred to is a "special," not a
general, election. The circumstance that three previous amendments to the Constitution had been
submitted to the people for ratification in special elections merely shows that Congress deemed it
best to do so under the circumstances then obtaining. It does not negate its authority to submit
proposed amendments for ratification in general elections.

It would be better, from the viewpoint of a thorough discussion of the proposed amendments, that
the same be submitted to the people's approval independently of the election of public officials. And
there is no denying the fact that an adequate appraisal of the merits and demerits proposed
amendments is likely to be overshadowed by the great attention usually commanded by the choice
of personalities involved in general elections, particularly when provincial and municipal officials are
to be chosen. But, then, these considerations are addressed to the wisdom of holding a plebiscite
simultaneously with the election of public officer. They do not deny the authority of Congress to
choose either alternative, as implied in the term "election" used, without qualification, in the
abovequoted provision of the Constitution. Such authority becomes even more patent when we
consider: (1) that the term "election," normally refers to the choice or selection of candidates to
public office by popular vote; and (2) that the word used in Article V of the Constitution, concerning
the grant of suffrage to women is, not "election," but "plebiscite."

Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution,
should be construed as meaning a special election. Some members of the Court even feel that said
term ("election") refers to a "plebiscite," without any "election," general or special, of public officers.
They opine that constitutional amendments are, in general, if not always, of such important, if not
transcendental and vital nature as to demand that the attention of the people be focused exclusively
on the subject-matter thereof, so that their votes thereon may reflect no more than their intelligent,
impartial and considered view on the merits of the proposed amendments, unimpaired, or, at least,
undiluted by extraneous, if not insidious factors, let alone the partisan political considerations that
are likely to affect the selection of elective officials.

This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted.
The ideal conditions are, however, one thing. The question whether the Constitution forbids the
submission of proposals for amendment to the people except under such conditions, is another
thing. Much as the writer and those who concur in this opinion admire the contrary view, they find
themselves unable to subscribe thereto without, in effect, reading into the Constitution what they
believe is not written thereon and can not fairly be deduced from the letter thereof, since the spirit of
the law should not be a matter of sheer speculation.

The majority view — although the votes in favor thereof are insufficient to declare Republic Act No.
4913 unconstitutional — as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however,
otherwise.

Would the Submission now of the Contested Amendments to the People Violate the Spirit of the
Constitution?
It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by
November 14, 1967, our citizenry shall have had practically eight (8) months to be informed on the
amendments in question. Then again, Section 2 of Republic Act No. 4913 provides:

(1) that "the amendments shall be published in three consecutive issues of the Official Gazette, at
least twenty days prior to the election;"

(2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place in every
municipality, city and provincial office building and in every polling place not later than October 14,
1967," and that said copy "shall remain posted therein until after the election;"

(3) that "at least five copies of said amendment shall be kept in each polling place, to be made
available for examination by the qualified electors during election day;"

(4) that "when practicable, copies in the principal native languages, as may be determined by the
Commission on Elections, shall be kept in each polling place;"

(5) that "the Commission on Elections shall make available copies of said amendments in English,
Spanish and, whenever practicable, in the principal native languages, for free distributing:" and

(6) that the contested Resolutions "shall be printed in full" on the back of the ballots which shall be
used on November 14, 1967.

We are not prepared to say that the foregoing measures are palpably inadequate to comply with the
constitutional requirement that proposals for amendment be "submitted to the people for their
ratification," and that said measures are manifestly insufficient, from a constitutional viewpoint, to
inform the people of the amendment sought to be made.

These were substantially the same means availed of to inform the people of the subject submitted to
them for ratification, from the original Constitution down to the Parity Amendment. Thus, referring to
the original Constitution, Section 1 of Act No. 4200, provides:

Said Constitution, with the Ordinance appended thereto, shall be published in the Official
Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to
said election, and a printed copy of said Constitution, with the Ordinance appended thereto,
shall be posted in a conspicuous place in each municipal and provincial government office
building and in each polling place not later than the twenty-second day of April, nineteen
hundred and thirty-five, and shall remain posted therein continually until after the termination
of the election. At least ten copies of the Constitution with the Ordinance appended thereto,
in English and in Spanish, shall be kept at each polling place available for examination by the
qualified electors during election day. Whenever practicable, copies in the principal local
dialects as may be determined by the Secretary of the Interior shall also be kept in each
polling place.

The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34, reading:

Said Article V of the Constitution shall be published in the Official Gazette, in English and in
Spanish, for three consecutive issues at least fifteen days prior to said election, and the said
Article V shall be posted in a conspicuous place in each municipal and provincial office
building and in each polling place not later than the twenty-second day of April, nineteen and
thirty-seven, and shall remain posted therein continually until after the termination of the
 plebiscite. At least ten copies of said Article V of the Constitution, in English and in Spanish,
shall be kept at each polling place available for examination by the qualified electors during
the plebiscite. Whenever practicable, copies in the principal native languages, as may be
determined by the Secretary of the Interior, shall also be kept in each polling place.

Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the
following tenor:

The said amendments shall be published in English and Spanish in three consecutive issues
of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall
be posted in a conspicuous place in every municipal, city, and provincial government office
building and in every polling place not later than May eighteen, nineteen hundred and forty,
and shall remain posted therein until after the election. At least ten copies of said
amendments shall be kept in each polling place to be made available for examination by the
qualified electors during election day. When practicable, copies in the principal native
languages, as may be determined by the Secretary of the Interior, shall also be kept therein.

As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:

The said amendment shall be published in English and Spanish in three consecutive issues
of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall
be posted in a conspicuous place in every municipal, city, and provincial government office
building and in every polling place not later than February eleven, nineteen hundred and
forty-seven, and shall remain posted therein until after the election. At least, ten copies of the
said amendment shall be kept in each polling place to be made available for examination by
the qualified electors during election day. When practicable, copies in the principal native
languages, as may be determined by the Commission on Elections, shall also be kept in
each polling place.

The main difference between the present situation and that obtaining in connection with the former
proposals does not arise from the law enacted therefor. The difference springs from the
circumstance that the major political parties had taken sides on previous amendments to the
Constitution — except, perhaps, the woman's suffrage — and, consequently, debated thereon at
some length before the plebiscite took place. Upon the other hand, said political parties have not
seemingly made an issue on the amendments now being contested and have, accordingly, refrained
from discussing the same in the current political campaign. Such debates or polemics as may have
taken place — on a rather limited scale — on the latest proposals for amendment, have been due
principally to the initiative of a few civic organizations and some militant members of our citizenry
who have voiced their opinion thereon. A legislation cannot, however, be nullified by reason of the
failure of certain sectors of the community to discuss it sufficiently. Its constitutionality or
unconstitutionality depends upon no other factors than those existing at the time of the enactment
thereof, unaffected by the acts or omissions of law enforcing agencies, particularly those that take
place subsequently to the passage or approval of the law.

Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency,
from a constitutional angle, of the submission thereof for ratification to the people on November 14,
1967, depends — in the view of those who concur in this opinion, and who, insofar as this phase of
the case, constitute the minority — upon whether the provisions of Republic Act No. 4913 are such
as to fairly apprise the people of the gist, the main idea or the substance of said proposals, which is
— under R. B. H. No. 1 — the increase of the maximum number of seats in the House of
Representatives, from 120 to 180, and — under R. B. H. No. 3 — the authority given to the members
of Congress to run for delegates to the Constitutional Convention and, if elected thereto, to
discharge the duties of such delegates, without forfeiting their seats in Congress. We — who
constitute the minority — believe that Republic Act No. 4913 satisfies such requirement and that said
Act is, accordingly, constitutional.

A considerable portion of the people may not know how over 160 of the proposed maximum of
representative districts are actually apportioned by R. B. H. No. 1 among the provinces in the
Philippines. It is not improbable, however, that they are not interested in the details of the
apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear
vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves
sufficiently by reading the copies of the proposed amendments posted in public places, the copies
kept in the polling places and the text of contested resolutions, as printed in full on the back of the
ballots they will use.

It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect
of R. B. H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic.
But, then, nobody can foretell such effect with certainty. From our viewpoint, the provisions of Article
XV of the Constitution are satisfied so long as the electorate knows that R. B. H. No. 3 permits
Congressmen to retain their seats as legislators, even if they should run for and assume the
functions of delegates to the Convention.

We are impressed by the factors considered by our distinguished and esteemed brethren, who opine
otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R. B.
H. Nos. 1 and 3, not the authority of Congress to approve the same.

The system of checks and balances underlying the judicial power to strike down acts of the
Executive or of Congress transcending the confines set forth in the fundamental laws is not in
derogation of the principle of separation of powers, pursuant to which each department is supreme
within its own sphere. The determination of the conditions under which the proposed amendments
shall be submitted to the people is concededly a matter which falls within the legislative sphere. We
do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in
enacting Republic Act No. 4913. Presumably, it could have done something better to enlighten the
people on the subject-matter thereof. But, then, no law is perfect. No product of human endeavor is
beyond improvement. Otherwise, no legislation would be constitutional and valid. Six (6) Members of
this Court believe, however, said Act and R. B. H. Nos. 1 and 3 violate the spirit of the Constitution.

Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R. B. H.
Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must be, as they are
hereby, dismiss and the writs therein prayed for denied, without special pronouncement as to costs.
It is so ordered.

Makalintal and Bengzon, J.P., JJ., concur.

Fernando, J., concurs fully with the above opinion, adding a few words on the question of
jurisdiction.

Separate Opinions

MAKALINTAL, J., concurring:

I concur in the foregoing opinion of the Chief Justice. I would make some additional observations in
connection with my concurrence. Sections 2 and 4 of Republic Act No. 4913 provide:

Sec. 2. The amendments shall be published in three consecutive issues of the Official
Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a
conspicuous place in every municipality, city and provincial office building and in every
polling place not later than October fourteen, nineteen hundred and sixty-seven, and shall
remain posted therein until after the election. At least five copies of the said amendments
shall be kept in each polling place to be made available for examination by the qualified
electors during election day. When practicable, copies in the principal native languages, as
may be determined by the Commission on Elections, shall be kept in each polling place. The
Commission on Elections shall make available copies of each amendments in English,
Spanish and, whenever practicable, in the principal native languages, for free distribution.

xxx xxx xxx

Sec. 4. The ballots which shall be used in the election for the approval of said amendments
shall be printed in English and Pilipino and shall be in the size and form prescribed by the
Commission on Elections: Provided, however, That at the back of said ballot there shall be
printed in full Resolutions of both Houses of Congress Numbered One and Three, both
adopted on March sixteen, nineteen hundred and sixty-seven, proposing the
amendments: Provided, further, That the questionnaire appearing on the face of the ballot
shall be as follows:

Are you in favor of the proposed amendment to Section five of Article VI of our Constitution
printed at the back of this ballot?

Are you in favor of the proposed amendment to section sixteen of Article VI of our
Constitution printed at the back of this ballot?

To vote for the approval of the proposed amendments, the voter shall write the word "yes" or
its equivalent in Pilipino or in the local dialect in the blank space after each question; to vote
for the rejection thereof, he shall write the word "No" or its equivalent in Pilipino or in the local
dialect.

I believe that intrinsically, that is, considered in itself and without reference to extraneous factors and
circumstances, the manner prescribed in the aforesaid provisions is sufficient for the purpose of
having the proposed amendments submitted to the people for their ratification, as enjoined in
Section 1, Article XV of the Constitution. I am at a loss to say what else should have been required
by the Act to make it adhere more closely to the constitutional requirement. Certainly it would have
been out of place to provide, for instance, that government officials and employees should go out
and explain the amendments to the people, or that they should be the subject of any particular
means or form of public discussion.

The objection of some members of the Court to Republic Act No. 4913 seems to me predicated on
the fact that there are so many other issues at stake in the coming general election that the attention
of the electorate, cannot be entirely focused on the proposed amendments, such that there is a
failure to properly submit them for ratification within the intendment of the Constitution. If that is so,
then the defect is not intrinsic in the law but in its implementation. The same manner of submitting
the proposed amendments to the people for ratification may, in a different setting, be sufficient for
the purpose. Yet I cannot conceive that the constitutionality or unconstitutionality of a law may be
made to depend willy-nilly on factors not inherent in its provisions. For a law to be struck down as
unconstitutional it must be so by reason of some irreconcilable conflict between it and the
Constitution. Otherwise a law may be either valid or invalid, according to circumstances not found in
its provisions, such as the zeal with which they are carried out. To such a thesis I cannot agree. The
criterion would be too broad and relative, and dependent upon individual opinions that at best are
subjective. What one may regard as sufficient compliance with the requirement of submission to the
people, within the context of the same law, may not be so to another. The question is susceptible of
as many views as there are viewers; and I do not think this Court would be justified in saying that its
own view on the matter is the correct one, to the exclusion of the opinions of others.

On the other hand, I reject the argument that the ratification must necessarily be in a special election
or plebiscite called for that purpose alone. While such procedure is highly to be preferred, the
Constitution speaks simply of "an election at which the amendments are submitted to the people for
their ratification," and I do not subscribe to the restrictive interpretation that the petitioners would
place on this provision, namely, that it means only a special election.

BENGZON, J.P., J., concurring:

It is the glory of our institutions that they are founded upon law, that no one can exercise any
authority over the rights and interests of others except pursuant to and in the manner authorized by
law.1 Based upon this principle, petitioners Ramon A. Gonzales and Philippine Constitution
Association (PHILCONSA) come to this Court in separate petitions.

Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in representation thru class suit of
all citizens of this country, filed this suit for prohibition with preliminary injunction to restrain the
Commission on Elections, Director of Printing and Auditor General from implementing and/or
complying with Republic Act 4913, assailing said law as unconstitutional.

Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation, assails the

constitutionality not only of Republic Act 4913 but also of Resolutions of Both Houses Nos. 1 and 3
of March 16, 1967.

Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino people for approval
the amendments to the Constitution of the Philippines proposed by the Congress of the Philippines
in Resolutions of Both Houses Numbered 1 and 3, adopted on March 16, 1967. Said Republic Act
fixes the date and manner of the election at which the aforesaid proposed amendments shall be
voted upon by the people, and appropriates funds for said election. Resolutions of Both Houses Nos.
1 and 3 propose two amendments to the Constitution: the first, to amend Sec. 5, Art. VI, by
increasing the maximum membership of the House of Representatives from 120 to 180, apportioning
160 of said 180 seats and eliminating the provision that Congress shall by law make an
apportionment within three years after the return of every enumeration; the second, to amend Sec.
16, Art. VI, by allowing Senators and Representatives to be delegates to a constitutional convention
without forfeiting their seats.

Since both petitions relate to the proposed amendments, they are considered together herein.

Specifically and briefly, petitioner Gonzales' objections are as follows: (1) Republic Act 4913 violates
Sec. 1, Art. XV of the Constitution, in submitting the proposed amendments to the Constitution, to
the people for approval, at the general election of 1967 instead of at a special election solely for that
purpose; (2) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, since it was not passed
with the 3/4 vote in joint session required when Congress proposes amendments to the Constitution,
said Republic Act being a step in or part of the process of proposing amendments to the
Constitution; and (3) Republic Act 4913 violates the due process clause of the Constitution (Sec. 1,
Subsec. 1, Art. III), in not requiring that the substance of the proposed amendments be stated on the
face of the ballot or otherwise rendering clear the import of the proposed amendments, such as by
stating the provisions before and after said amendments, instead of printing at the back of the ballot
only the proposed amendments.

Since observance of Constitutional provisions on the procedure for amending the Constitution is
concerned, the issue is cognizable by this Court under its powers to review an Act of Congress to
determine its conformity to the fundamental law. For though the Constitution leaves Congress free to
propose whatever Constitutional amendment it deems fit, so that the substance or content of said
proposed amendment is a matter of policy and wisdom and thus a political question, the Constitution
nevertheless imposes requisites as to the manner or procedure of proposing such
amendments, e.g., the three-fourths vote requirement. Said procedure or manner, therefore, from
being left to the discretion of Congress, as a matter of policy and wisdom, is fixed by the
Constitution. And to that extent, all questions bearing on whether Congress in proposing
amendments followed the procedure required by the Constitution, is perforce justiciable, it not being
a matter of policy or wisdom.

Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly does not bear him on the
point. It nowhere requires that the ratification be thru an election solely for that purpose. It only
requires that it be at "an election at which the amendments are submitted to the people for their
ratification." To join it with an election for candidates to public office, that is, to make it concurrent
with such election, does not render it any less an election at which the proposed amendments are
submitted to the people for their ratification. To prohibition being found in the plain terms of the
Constitution, none should be inferred. Had the framers of requiring Constitution thought of requiring
a special election for the purpose only of the proposed amendments, they could have said so, by
qualifying the phrase with some word such as "special" or "solely" or "exclusively". They did not.

It is not herein decided that such concurrence of election is wise, or that it would not have been
better to provide for a separate election exclusively for the ratification of the proposed amendments.
The point however is that such separate and exclusive election, even if it may be better or wiser,
which again, is not for this Court to decide, is not included in the procedure required by the
Constitution to amend the same. The function of the Judiciary is "not to pass upon questions of
wisdom, justice or expediency of legislation".2 It is limited to determining whether the action taken by
the Legislative Department has violated the Constitution or not. On this score, I am of the opinion
that it has not.

Petitioner Gonzales' second point is that Republic Act 4913 is deficient for not having been passed
by Congress in joint session by 3/4 vote.

Sec. 1, Art. XV of the Constitution provides:

Sec. 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 that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of the votes cast at an
election to which the amendments are submitted to the people for their ratification.

Does Republic Act 4913 propose amendments to the Constitution? If by the term "propose
amendment" is meant to determine WHAT said amendment shall be, then Republic Act 4913 does
not; Resolutions of Both Houses 1 and 3 already did that. If, on the other hand, it means, or also
means, to provide for how, when, and by what means the amendments shall be submitted to the
people for approval, then it does.

A careful reading of Sec. 1, Art. XV shows that the first sense. is the one intended. Said Section has
two sentences: in the first, it requires the 3/4 voting in joint session, for Congress to "propose
amendments". And then in the second sentence, it provides that "such amendments . . . shall be
submitted to the people for their ratification". This clearly indicates that by the term "propose
amendments" in the first sentence is meant to frame the substance or the content or the WHAT-
element of the amendments; for it is this and this alone that is submitted to the people for their
ratification. The details of when the election shall be held for approval or rejection of the proposed
amendments, or the manner of holding it, are not submitted for ratification to form part of the
Constitution. Stated differently, the plain language of Section 1, Art. XV, shows that the act of
proposing amendments is distinct from — albeit related to — that of submitting the amendments to
the people for their ratification; and that the 3/4 voting requirement applies only to the first step, not
to the second one.

It follows that the submission of proposed amendments can be done thru an ordinary statute passed
by Congress. The Constitution does not expressly state by whom the submission shall be
undertaken; the rule is that a power not lodged elsewhere under the Constitution is deemed to reside
with the legislative body, under the doctrine of residuary powers. Congress therefore validly enacted
Republic Act 4913 to fix the details of the date and manner of submitting the proposed amendments
to the people for their ratification. Since it does not "propose amendments" in the sense referred to
by Sec. 1, Art. XV of the Constitution, but merely provides for how and when the amendments,
already proposed, are going to be voted upon, the same does not need the 3/4 vote in joint session
required in Sec. 1, Art. XV of the Constitution. Furthermore, Republic Act 4913 is an appropriation
measure. Sec. 6 thereof appropriates P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of
the Constitution states that "All appropriation . . . bills shall originate exclusively in the House of
Representatives". Republic Act 4913, therefore, could not have been validly adopted in a joint
session, reinforcing the view that Sec. 1, Art. XV does not apply to such a measure providing for the
holding of the election to ratify the proposed amendments, which must perforce appropriate funds for
its purpose.

Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against substantive due
process. An examination of the provisions of the law shows no violation of the due process clause of
the Constitution. The publication in the Official Gazette at least 20 days before the election, the
posting of notices in public buildings not later than October 14, 1967, to remain posted until after the
elections, the placing of copies of the proposed amendments in the polling places, aside from
printing the same at the back of the ballot, provide sufficient opportunity to the voters to cast an
intelligent vote on the proposal. Due process refers only to providing fair opportunity; it does not
guarantee that the opportunity given will in fact be availed of; that is the look-out of the voter and the
responsibility of the citizen. As long as fair and reasonable opportunity to be informed is given, and it
is, the due process clause is not infringed.

Non-printing of the provisions to be amended as they now stand, and the printing of the full proposed
amendments at the back of the ballot instead of the substance thereof at the face of the ballot, do
not deprive the voter of fair opportunity to be informed. The present wording of the Constitution is not
being veiled or suppressed from him; he is conclusively presumed to know them and they are
available should he want to check on what he is conclusively presumed to know. Should the voters
choose to remain ignorant of the present Constitution, the fault does not lie with Congress. For
opportunity to familiarize oneself with the Constitution as it stands has been available thru all these
years. Perhaps it would have been more convenient for the voters if the present wording of the
provisions were also to be printed on the ballot. The same however is a matter of policy. As long as
the method adopted provides sufficiently reasonable chance to intelligently vote on the amendments,
and I think it does in this case, it is not constitutionally defective.

Petitioner Gonzales' other arguments touch on the merits or wisdom of the proposed amendments.
These are for the people in their sovereign capacity to decide, not for this Court.

Two arguments were further advanced: first, that Congress cannot both call a convention and
propose amendments; second, that the present Congress is a de facto one, since no apportionment
law was adopted within three years from the last census of 1960, so that the Representatives
elected in 1961 are de facto officers only. Not being de jure, they cannot propose amendments, it is
argued.

As to the first point, Sec. 1 of Art. XV states that Congress "may propose amendments or call a
convention for that purpose". The term "or", however, is frequently used as having the same
meaning as "and" particularly in permissive, affirmative sentences so that the interpretation of the
word "or" as "and" in the Constitution in such use will not change its meaning (Vicksburg S. & P. R.
Co. v. Goodenough, 32 So. 404, 411, 108 La, 442). And it should be pointed out that the resolutions
proposing amendments (R.B.H. Nos. 1 and 3) are different from that calling for a convention (R.B.H.
No. 2). Surely, if Congress deems it better or wise to amend the Constitution before a convention
called for is elected, it should not be fettered from doing so. For our purposes in this case, suffice it
to note that the Constitution does not prohibit it from doing so.

As to the second argument, it is also true that Sec. 5 of Art. VI of the Constitution provides in part
that "The Congress shall by law make an apportionment within three years after the return of every
enumeration, and not otherwise". It however further states in the next sentence: "Until such
apportionment shall have been made, the House of Representatives shall have the same number of
Members as that fixed by law for the National Assembly, who shall be elected by the qualified
electors from the present assembly districts." The failure of Congress, therefore, to pass a valid
redistricting law since the time the above provision was adopted, does not render the present
districting illegal or unconstitutional. For the Constitution itself provides for its continuance in such
case, rendering legal and de jure the status quo.

For the above reasons, I vote to uphold the constitutionality of Republic Act 4913, and fully concur
with the opinion of the Chief Justice.

FERNANDO, J., concurring:

At the outset, we are faced with a question of jurisdiction. The opinion prepared by the Chief Justice
discusses the matter with a fullness that erases doubts and misgivings and clarifies the applicable
principles. A few words may however be added.

We start from the premise that only where it can be shown that the question is to be solved by public
opinion or where the matter has been left by the Constitution to the sole discretion of any of the
political branches, as was so clearly stated by the then Justice Concepcion in Tañada v.
Cuenco,1 may this Court avoid passing on the issue before it. Whatever may be said about the
present question, it is hard to speak with certitude considering Article XV, that Congress may be
entrusted with the full and uncontrolled discretion on the procedure leading to proposals for an
amendment of the Constitution.
It may be said however that in Mabanag v. Lopez Vito,2 this Court through Justice Tuason followed
Coleman v. Miller,3 in its holding that certain aspects of the amending process may be considered
political. His opinion quoted with approval the view of Justice Black, to which three other members of
the United States Supreme Court agreed, that the process itself is political in its entirety, "from
submission until an amendment becomes part of the Constitution, and is not subject to judicial
guidance, control or interference at any point." In a sense that would solve the matter neatly. The
judiciary would be spared the at times arduous and in every case soul-searching process of
determining whether the procedure for amendments required by the Constitution has been followed.

At the same time, without impugning the motives of Congress, which cannot be judicially inquired
into at any rate, it is not beyond the realm of possibility that a failure to observe the requirements of
Article XV would occur. In the event that judicial intervention is sought, to rely automatically on the
theory of political question to avoid passing on such a matter of delicacy might under certain
circumstances be considered, and rightly so, as nothing less than judicial abdication or surrender.

What appears regrettable is that a major opinion of an esteemed jurist, the late Justice Tuason,
would no longer be controlling. There is comfort in the thought that the view that then prevailed was
itself a product of the times. It could very well be that considering the circumstances existing in 1947
as well as the particular amendment sought to be incorporated in the Constitution, the parity rights
ordinance, the better part of wisdom in view of the grave economic situation then confronting the
country would be to avoid the existence of any obstacle to its being submitted for ratification.
Moreover, the Republic being less than a year old, American Supreme Court opinions on
constitutional questions were-invariably accorded uncritical acceptance. Thus the approach followed
by Justice Tuason is not difficult to understand. It may be said that there is less propensity now,
which is all to the good, for this Court to accord that much deference to constitutional views coming
from the quarter.

Nor is this mode of viewing the opinion of Justice Tuason to do injustice to his memory. For as he
stated in another major opinion in Araneta v. Dinglasan,4 in ascertaining the meaning to be given the
Emergency Powers Act,5 one should not ignore what would ensue if a particular mode of
construction were followed. As he so emphatically stated, "We test a rule by its results."

The consequences of a judicial veto on the then proposed amendment on the economic survival of
the country, an erroneous appraisal it turned out later, constituted an effective argument for its
submission. Why not then consider the question political and let the people decide? That assumption
could have been indulged in. It could very well be the inarticulate major premise. For many it did
bear the stamp of judicial statesmanship.

The opinion of Chief Justice Concepcion renders crystal-clear why as of this date and in the
foreseeable future judicial inquiry to assure the utmost compliance with the constitutional
requirement would be a more appropriate response.

SANCHEZ, J., in separate opinion:

Right at the outset, the writer expresses his deep appreciation to Mr. Justice Calixto O. Zaldivar and
Mr. Justice Fred Ruiz Castro for their invaluable contribution to the substance and form of the
opinion which follows.
Directly under attack in this, a petition for prohibition, is the constitutionality of Republic Act 4913,
approved on June 17, 1967. This Act seeks to implement Resolutions 1 and 3 adopted by the
Senate and the House of Representatives on March 16, 1967 with the end in view of amending vital
portions of the Constitution.

Since the problem here presented has its roots in the resolutions aforesaid of both houses of
Congress, it may just as well be that we recite in brief the salient features thereof. Resolution No. 1
increases the membership of the House of Representatives from 120 to 180 members, and
immediately apportions 160 seats. A companion resolution is Resolution No. 3 which permits
Senators and Congressmen — without forfeiting their seats in Congress — to be members of the
Constitutional Convention1 to be convened, as provided in another resolution — Resolution No. 2.
Parenthetically, two of these proposed amendments to the Constitution (Resolutions I and 3) are to
be submitted to the people for their ratification next November 14, 1967. Resolution No. 2 just
adverted to calls for a constitutional convention also to propose amendments to the Constitution.
The delegates thereto are to be elected on the second Tuesday of November 1970; the convention
to sit on June 1, 1971; and the amendments proposed by the convention to be submitted to the
people thereafter for their ratification.

Of importance now are the proposed amendments increasing the number of members of the House
of representatives under Resolution No. 1, and that in Resolution No. 3 which gives Senators and
Congressmen the right to sit as members of the constitutional convention to be convened on June 1,
1971. Because, these are the two amendments to be submitted to the people in the general
elections soon to be held on November 14, 1967, upon the provisions of Section 1, Republic Act
4913, which reads:

The amendments to the Constitution of the Philippines proposed by the Congress of the
Philippines in Resolutions of both Houses Numbered One and Three, both adopted on
March sixteen, nineteen hundred and sixty- seven, shall be submitted to the people for
approval at the general election which shall be held on November fourteen, nineteen
hundred and sixty- seven, in accordance with the provisions of this Act.

Republic Act 4913 projects the basic angle of the problem thrust upon us — the manner in which the
amendments proposed by Congress just adverted to be brought to the people's attention.

First, to the controlling constitutional precept. In order that proposed amendments to the Constitution
may become effective, Section 1, Article XV thereof commands that such amendments must be
"approved by a majority of the votes cast at an election at which amendments are submitted to the
people for their ratification."2 The accent is on two words complementing each other, namely,
"submitted" and "ratification."

1. We are forced to take a long hard look at the core of the problem facing us. And this, because the
amendments submitted are transcendental and encompassing. The ceiling of the number of
Congressmen is sought to be elevated from 120 to 180 members; and Senators and Congressmen
may run in constitutional conventions without forfeiting their seats. These certainly affect the people
as a whole. The increase in the number of Congressmen has its proportional increase in the
people's tax burdens. They may not look at this with favor, what with the constitutional provision
(Section 5, Article VI) that Congress "shall by law make an apportionment", without the necessity of
disturbing the present constitutionally provided number of Congressmen. People in Quezon City, for
instance, may balk at the specific apportionment of the 160 seats set forth in Resolution No. 1, and
ask for a Congressman of their own, on the theory of equal representation. And then, people may
question the propriety of permitting the increased 180 Congressmen from taking part in the
forthcoming constitutional convention and future conventions for fear that they may dominate its
proceedings. They may entertain the belief that, if at all, increase in the number of Congressmen
should be a proper topic for deliberation in a constitutional convention which, anyway, will soon take
place. They probably would ask: Why the hurry? These ponderables require the people's close
scrutiny.

2. With these as backdrop, we perforce go into the philosophy behind the constitutional directive that
constitutional amendments be submitted to the people for their ratification.

A constitutional amendment is not a temporary expedient. Unlike a statute which may suffer
amendments three or more times in the same year, it is intended to stand the test of time. It is an
expression of the people's sovereign will.

And so, our approach to the problem of the mechanics of submission for ratification of amendments
is that reasoning on the basis of the spirit of the Constitution is just as important as reasoning by a
strict adherence to the phraseology thereof. We underscore this, because it is within the realm of
possibility that a Constitution maybe overhauled. Supposing three-fourths of the Constitution is to be
amended. Or, the proposal is to eliminate the all important; Bill of Rights in its entirety. We believe it
to be beyond debate that in some such situations the amendments ought to call for a constitutional
convention rather than a legislative proposal. And yet, nothing there is in the books or in the
Constitution itself. which would require such amendments to be adopted by a constitutional
convention. And then, too, the spirit of the supreme enactment, we are sure, forbids that proposals
therefor be initiated by Congress and thereafter presented to the people for their ratification.

In the context just adverted to, 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 in insidious influences. We believe, the word "submitted" can only
mean that the government, within its maximum capabilities, should strain every effort to inform very
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.

Aptly had it been said:

. . . 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
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 the excitement or hot blood, but the sober second thought,
which alone, if the government is to be safe, can be allowed efficiency. . . . Changes in
 government are to be feared unless the benefit is certain. As Montaign says: "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. 3113

3. Tersely put, the issue before us funnels down to this proposition: If the people are not sufficiently
informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express
their will in a genuine manner can it be said that in accordance with the constitutional mandate, "the
amendments are submitted to the people for their ratification?" Our answer is "No".

We examine Republic Act 4913, approved on June 17, 1967 — the statute that submits to the
people the constitutional amendments proposed by Congress in Resolutions 1 and 3. Section 2 of
the Act provides the manner of propagation of the nature of the amendments throughout the country.
There are five parts in said Section 2, viz:

(1) The amendment shall be published in three consecutive issues of the Official Gazette at
least twenty days prior to the election.

(2) A printed copy thereof shall be posted in a conspicuous place in every municipality, city
and provincial office building and in every polling place not later than October fourteen,
nineteen hundred and sixty-seven, and shall remain posted therein until after the election.

(3) At least five copies of the said amendments shall be kept in each polling place to be
made available for examination by the qualified electors during election day.

(4) When practicable, copies in the principal native languages, as may be determined by the
Commission on Elections, shall be kept in each polling place.

(5) The Commission on Elections shall make available copies of said amendments in
English, Spanish and, whenever practicable, in the principal native languages, for free
distribution.

A question that comes to mind is whether the procedure for dissemination of information regarding
the amendments effectively brings the matter to the people. A dissection of the mechanics yields
disturbing thoughts. First, the Official Gazette is not widely read. It does not reach the barrios. And
even if it reaches the barrios, is it available to all? And if it is, would all under stand English? Second,
it should be conceded that many citizens, especially those in the outlying barrios, do not go to
municipal, city and/or provincial office buildings, except on special occasions like paying taxes or
responding to court summonses. And if they do, will they notice the printed amendments posted on
the bulletin board? And if they do notice, such copy again is in English (sample submitted to this
Court by the Solicitor General) for, anyway, the statute does not require that it be in any other
language or dialect. Third, it would not help any if at least five copies are kept in the polling place for
examination by qualified electors during election day. As petitioner puts it, voting time is not study
time. And then, who can enter the polling place, except those who are about to vote? Fourth, copies
in the principal native languages shall be kept in each polling place. But this is not, as Section 2 itself
implies, in the nature of a command because such copies shall be kept therein only "when
practicable" and "as may be determined by the Commission on Elections." Even if it be said that
these are available before election, a citizen may not intrude into the school building where the
polling places are usually located without disturbing the school classes being held there. Fifth, it is
true that the Comelec is directed to make available copies of such amendments in English, Spanish
or whenever practicable, in the principal native languages, for free distribution. However, Comelec is
not required to actively distribute them to the people. This is significant as to people in the provinces,
especially those in the far-flung barrios who are completely unmindful of the discussions that go on
now and then in the cities and centers of population on the merits and demerits of the amendments.
Rather, Comelec, in this case, is but a passive agency which may hold copies available, but which
copies may notbe distributed at all. Finally, it is of common knowledge that Comelec has more than
its hands full in these pre-election days. They cannot possibly make extensive distribution.

Voters will soon go to the polls to say "yes" or "no". But even the official sample ballot submitted to
this Court would show that only the amendments are printed at the back. And this, in pursuance to
Republic Act 4913 itself.

Surely enough, the voters do not have the benefit of proper notice of the proposed amendments thru
dissemination by publication in extenso. People do not have at hand the necessary data on which to
base their stand on the merits and demerits of said amendments.

We, therefore, hold that there is no proper submission of the proposed constitutional amendments
within the meaning and intendment of Section 1, Article XV of the Constitution.

4. Contemporary history is witness to the fact that during the present election campaign the focus is
on the election of candidates. The constitutional amendments are crowded out. Candidates on the
homestretch, and their leaders as well as the voters, gear their undivided efforts to the election of
officials; the constitutional amendments cut no ice with them. The truth is that even in the ballot itself,
the space accorded to the casting of "yes" or "no" vote would give one the impression that the
constitutional amendments are but a bootstrap to the electoral ballot. Worse still, the fortunes of
many elective officials, on the national and local levels, are inextricably intertwined with the results of
the votes on the plebiscite. In a clash between votes for a candidate and conscience on the merits
and demerits of the constitutional amendments, we are quite certain that it is the latter that will be
dented.

5. That proper submission of amendments to the people to enable them to equally ratify them
properly is the meat of the constitutional requirement, is reflected in the sequence of uniform past
practices. The Constitution had been amended thrice — in 1939, 1940 and 1947. In each case, the
amendments were embodied in resolutions adopted by the Legislature, which thereafter fixed the
dates at which the proposed amendments were to be ratified or rejected. These plebiscites have
been referred to either as an "election" or "general election". At no time, however, was the vote for
the amendments of the Constitution held simultaneously with the election officials, national or local.
Even with regard to the 1947 parity amendment; the record shows that the sole issue was the 1947
parity amendment; and the special elections simultaneously held in only three provinces, Iloilo,
Pangasinan and Bukidnon, were merely incidental thereto.

In the end we say that the people are the last ramparts that guard against indiscriminate changes in
the Constitution that is theirs. Is it too much to ask that reasonable guarantee be made that in the
matter of the alterations of the law of the land, their true voice be heard? The answer perhaps is best
expressed in the following thoughts: "It must be remembered that the Constitution is the people's
enactment. No proposed change can become effective unless they will it so through the compelling
force of need of it and desire for it."4

For the reasons given, our vote is that Republic Act 4913 must be stricken down as in violation of the
Constitution.

Zaldivar and Castro, JJ., concur.

Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.
REYES, J.B.L., J., concurring:

I concur in the result with the opinion penned by Mr. Justice Sanchez. To approve a mere proposal
to amend the Constitution requires (Art. XV) a three-fourths (3/4) vote of all the members of each
legislative chamber, the highest majority ever demanded by the fundamental charter, one higher
even than that required in order to declare war (Sec. 24, Article VI), with all its dire consequences. If
such an overwhelming majority, that was evidently exacted in order to impress upon all and sundry
the seriousness of every constitutional amendment, is asked for a proposal to amend the
Constitution, 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 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 at an election wherein the people could
devote undivided attention to the subject. That this was the intention and the spirit of the provision is
corroborated in the case of all other constitutional amendments in the past, that were submitted to
and approved in special elections exclusively devoted to the issue whether the legislature's
amendatory proposals should be ratified or not.

Dizon, Angeles, Zaldivar and Castro, JJ., concur.

Footnotes

1Urging the latter to refrain from implementing Republic Act. No. 4913 and from submitting to
a plebiscite in the general elections to be held on November 14, 1967, the Constitutional
amendments proposed in the aforementioned R.B.H. Nos. 1 and 3.

2 Dated October 30, 1967.

3 78 Phil. 1.

4 63 Phil. 139, 157.

5 Supra.

6 81 Phil. 818.

7 L-2851, March 4 and 14, 1949.

8 L-10520, February 28, 1957.

9 L-18684, September 14, 1961.

10 Section 1, Art. VI, Constitution of the Philippines.

11 Section 1, Art. II, Constitution of the Philippines.

12 Section 1, Art. XV, Constitution of the Philippines.

13 Of amending the Constitution.

14 And, inferentially, to lower courts.

15 Sec. 2(1), Art. VIII of the Constitution.

16 Supra.

17 Approved, June 17, 1961.

18 Macias vs. Commission on Elections, supra.

Under the original Constitution providing for a unicameral legislative body, whose
19

members were chosen for a term of three (3) years (Section 1, Art. VI, of the Original
Constitution).

20 Section 1, Article IX of the Constitution.

Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. p. 192; Nacionalista Party vs. De
21

Vera, 85 Phil., 126; Codilla vs. Martinez, L-14569, November 23, 1960. See, also, State vs.
Carrol, 38 Conn. 499; Wilcox vs. Smith, 5 Wendell [N.Y.] 231; 21 Am. Dec., 213; Sheenan's
Case, 122 Mass., 445; 23 Am. Rep., 323.

22 Torres vs. Ribo, 81 Phil. 50.

23 Nacionalista Party vs. De Vera, supra.

24 People vs. Rogelio Gabitanan, 43 O.G. 3211.

25 53 Phil. 866.

50 Am. Jur., Sec. 282, pp. 267-268, citing Heckathorn v. Heckathorn, 284 Mich. 677, 280
26

NW 79, citing RCL; Robson v. Cantwell, 143 SC 104, 141 SE 180, citing RCL; Geiger v.
Kobilka, 26 Wash 171, 66 P 423, Am. St. Rep. 733 and many others.

BENGZON, J.P., J., concurring:

1 United States v. San Jacinto Tin Co., 125 U. S. 273.

2 Angara v. Electoral Commission, 63 Phil. 139, 1958, Justice Laurel, ponente.

FERNANDO, J., concurring:

1 103 Phil. 1051 (1957).

2 78 Phil. 1 (1947).
3 307 US 433 (1939).

4 84 Phil. 368 (1940).

5 Commonwealth Act No. 671 (1941).

6 Araneta v. Dinglasan, supra, at p. 376.

SANCHEZ, J., separate opinion:

1The text of the law reads: "He (Senator or Member of the House of Representatives) may,
however, be a Member of Constitutional Convention."

2 Emphasis supplied.

3 Ellingham vs. Dye, 99 N.E. pp. 4, 15; Emphasis supplied.

4 Elingham vs. Dye, supra, at p. 17; emphasis supplied.

G.R. Nos. L-34161 February 29, 1972

EUGENE A. TAN, SILVESTRE J. ACEJAS and ROGELIO V. FERNANDEZ, on their behalf and
on behalf of the People of the Philippines, petitioners,
vs.
DIOSDADO P. MACAPAGAL, on his behalf and on behalf of the other Delegates to the 1971
Constitutional Convention, respondents.

RESOLUTION

FERNANDO, J.:p

A five-page petition filed on October 6, 1971 by Eugene A. Tan, Silvestre J. Acejas and Rogelio V.
Fernandez, respectively, of Roxas City, Romblon and Davao City, for declaratory relief as taxpayers,
but purportedly suing on behalf of themselves and the Filipino people, in assailing the validity of the
Laurel-Leido Resolution,1 dealing with the range of the authority of the 1971 Constitutional
Convention, would have this Court declare that it is "without power, under Section 1, Article XV of
the Constitution and Republic Act 6132, to consider, discuss and adopt proposals which seek to
revise the present Constitution through the adoption of a form of government other than the form
now outlined in the present Constitution [the Convention being] merely empowered to propose
improvements to the present Constitution without altering the general plan laid down therein."2 Such
a plea of the utmost seriousness was sought to be compressed in a five-page pleading. It is
understandable, therefore, why the petition could hardly be characterized as possessed of merit.
Accordingly, on October 8, 1971, this Court issued a resolution dismissing it. Then came on the last
day of that month a printed thirty-two page motion for reconsideration. It is evident that petitioners
took some pains this time, although the main reliance seems to be on a secondary authority,
American Jurisprudence.3 The show of diligence is impressive but the persuasive quality is
something else. A perusal thereof yields the conclusion that petitioners are oblivious of the
authoritative precedents in this jurisdiction. The approach is not distinguished by its conformity with
the law as it stands. In this sphere as elsewhere, new cults may be eroding considering, however,
the compulsion of the ancient faiths. Considering, however, the compulsion of the fundamental
principle of separation of powers, this Court cannot exercise the competence petitioners would
erroneously assume it possesses, even assuming that they have the requisite standing, which is the
first question to be faced.

1. What calls for prior determination is whether or not petitioners had the requisite standing to seek a
declaration of the alleged nullity of a resolution of the Constitutional Convention.4 In the categorical
and succinct language of Justice Laurel: "The unchallenged rule is 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."5 There has been a relaxation of
this rule. So it was announced by the present Chief Justice inPascual v. The Secretary of Public
Works.6 Thus: "Again, 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."7 Moreover, where a constitutional question is raised, a
Senator has usually been considered as possessed of the requisite personality to bring a suit. Thus
in Mabanag vs. Lopez Vito,8 it was a member of the Senate who was heard by this Court in a suit for
prohibition to prevent the enforcement of the congressional resolution proposing the parity rights
amendment.9 Likewise, in the latest case in point, Tolentino v. Commission on Elections, it was a
Senator who brought action challenging the validity of Organic Resolution No. 1 of the 1971
Constitutional Convention. He was quite sucessful too. Petitioners in the present case cannot be
heard to assert that they do qualify under such a category.

Moreover, as far as a taxpayer's suit is concerned, Court is not devoid of discretion as to whether or
not it should be entertained. It is our view that a negative answer is indicated. Nor should petitioners
feel discriminated against just because in Gonzales v. Commission on Elections, 10 a member of the
Philippine Bar, now Delegate Ramon Gonzales, was allowed to prosecute his action for prohibition
instituted by him as a taxpayer. Petitioners have no cause for legitimate resentment as such suit
could be distinguished from the present.

2. Petitioner Gonzales in accordance with the controlling doctrine had the good sense to wait before
filing his suit until after the enactment of the statute 11 for the submission to the electorate of certain
proposed amendments to the Constitution. 12 It was only then that the matter was ripe for
adjudication. Prior to that stage, the judiciary had to keep its hands off. The doctrine of separation of
powers calls for the other departments being left alone to discharge their duties as they see fit. The
judiciary as Justice Laurel emphatically asserted "will neither direct nor restrain executive [or
legislative]
action ... ." 13 The legislative and executive branches are not bound to seek its advice as to what to
do or not to do. Judicial inquiry has to be postponed in the meanwhile. It is a prerequisite that
something had by then been accomplished or performed by either branch before a court may come
into the picture. At such a time, it may pass on the validity of what was done but only "when ...
properly challenged in an appropriate legal proceeding."14

Such a principle applies as well when the inquiry concerns the scope of the competence lodged in
the Constitutional Convention. The judiciary must leave it free to fulfill its responsibility according to
its lights. There is to be no interference. Its autonomy is to be respected. It cannot be otherwise if it
is to perform its function well. Such should be the case not only because it is a coordinate agency
but also because its powers are transcendent, amounting as it does to submitting for popular
ratification proposals which may radically alter the organization and functions of all three
departments, including the courts. It is therefore much more imperative that the rule of non-
interference be strictly adhered to until the appropriate time comes.

More specifically, as long as any proposed amendment is still unacted on by it, there is no room for
the interposition of judicial oversight. Only after it has made concrete what it intends to submit for
ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction.
That is the command of the Constitution as interpreted by this Court. Unless and until such a
doctrine loses force by being overruled or a new precedent being announced, it is controlling. That is
implicit in the rule of law. Petitioners' motion for reconsideration cannot therefor be sustained.

WHEREFORE, the motion for reconsideration is denied. No costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar Castro, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.

Footnotes

1 Resolution No. 2127 of the Constitutional Convention (1971).

2 Petition, p. 5.

3 Practitioners relying on American Jurisprudence, or Corpus Juris Secundum for

that matter, would be well-advised not to accept at face value the many American
State decisions cited, in the appropriate footnotes of the text prepared by its editors,
without reading the opinions therein rendered. Thereby there is likely to be that much
needed refinement in the choice of persuasive precedents and the avoidance of
indiscriminate lumping together of cases not at all applicable.

4 Cf. Tolentino v. Commission on Elections, L-34150. Oct. 16, 1971, 41 SCRA 702.

5 People v. Vera, 65 Phil. 56, 89 (1937).

6 110 Phil. 331 (1960).

7 Ibid, pp. 342-343.

8 78 Phil. 1 (1947).

9 Republic Act No. 73 (1946).

10 L-28196, Nov. 9, 1967, 21 SCRA 774.

11 Rep. Act No. 4913 (1967).

12 Resolutions Nos. 1 and 3 of Congress as a constituent body (1967).

13 Planas v. Gil, 67 Phil. 62, 73 (1939).

14 Ibid.
G.R. No. 127325 March 19, 1997

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL

ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA,
in their capacities as founding members of the People's Initiative for Reforms, Modernization
and Action (PIRMA), respondents.

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),

MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG
PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the
Rules of Court is the right of the people to directly propose amendments to the Constitution through
the system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this
demands special attention, as this system of initiative was unknown to the people of this country,
except perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986
Constitutional Commission itself, through the original proponent1 and the main sponsor2 of the
proposed Article on Amendments or Revision of the Constitution, characterized this system as
"innovative".3 Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of
proposing amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress
upon a vote of three-fourths of all its members and (2) by a constitutional convention.4 For this and
the other reasons hereafter discussed, we resolved to give due course to this petition.

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent
Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition)5 wherein Delfin asked the
COMELEC for an order

1. Fixing the time and dates for signature gathering all over the country;

2. Causing the necessary publications of said Order and the attached "Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist

Petitioners and volunteers, in establishing signing stations at the time and on the
dates designated for the purpose.

Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative,6 a
group of citizens desirous to avail of the system intended to institutionalize people power; that he
and the members of the Movement and other volunteers intend to exercise the power to directly
propose amendments to the Constitution granted under Section 2, Article XVII of the Constitution;
that the exercise of that power shall be conducted in proceedings under the control and supervision
of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be
established all over the country, with the assistance of municipal election registrars, who shall verify
the signatures affixed by individual signatories; that before the Movement and other volunteers can
gather signatures, it is necessary that the time and dates to be designated for the purpose be first
fixed in an order to be issued by the COMELEC; and that to adequately inform the people of the
electoral process involved, it is likewise necessary that the said order, as well as the Petition on
which the signatures shall be affixed, be published in newspapers of general and local circulation,
under the control and supervision of the COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of
Article VI,7Section 4 of Article VII,8 and Section 8 of Article X9 of the Constitution. Attached to the
petition is a copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed
amendments which consist in the deletion from the aforecited sections of the provisions concerning
term limits, and with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE

GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND
7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X
OF THE 1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is
signed by at least twelve per cent of the total number of registered voters in the country it will be
formally filed with the COMELEC.

Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037
(INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause
the publication of the petition, together with the attached Petition for Initiative on the 1987
Constitution (including the proposal, proposed constitutional amendment, and the signature form),
and the notice of hearing in three (3) daily newspapers of general circulation at his own expense" not
later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00
a.m.

At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty.
Pete Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action
(PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and
representatives of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-
Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong
Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on
the ground that it is not the initiatory petition properly cognizable by the COMELEC.

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their
"memoranda and/or oppositions/memoranda" within five days. 13

On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander
Padilla, and Maria Isabel Ongpin — filed this special civil action for prohibition raising the following
arguments:

(1) The constitutional provision on people's initiative to amend the Constitution can
only be implemented by law to be passed by Congress. No such law has been
passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating
Constitution Amendments by People's Initiative, which petitioner Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.
 (2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed to
provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of people's initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered before the Senate in 1994:
"There is not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the
conduct of initiative on the Constitution and initiative and referendum on national and
local laws, is ultra vires insofar as initiative on amendments to the Constitution is
concerned, since the COMELEC has no power to provide rules and regulations for
the exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.

(5) The people's initiative is limited to amendments to the Constitution, not

to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.

(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the
COMELEC nor any other government department, agency, or office has realigned
funds for the purpose.

To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in
the event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA
would entail expenses to the national treasury for general re-registration of voters amounting to at
least P180 million, not to mention the millions of additional pesos in expenses which would be
incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public and
the nation of the issues raised demands that this petition for prohibition be settled promptly and
definitely, brushing aside technicalities of procedure and calling for the admission of a taxpayer's and
legislator's suit. 14 Besides, there is no other plain, speedy, and adequate remedy in the ordinary
course of law.

On 19 December 1996, this Court (a) required the respondents to comment on the petition within a
non-extendible period of ten days from notice; and (b) issued a temporary restraining order, effective
immediately and continuing until further orders, enjoining public respondent COMELEC from
proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from
conducting a signature drive for people's initiative to amend the Constitution.

On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the petition.
They argue therein that:

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL

TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT
LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE
"COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE
THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL

GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT
DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE
ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE
COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE
SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE
DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS
P2,571,200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE

SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO
SUPERVISE CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION"
UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S
SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY
PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991

PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN
THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE
THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO
NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES
AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS."

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290

CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO
"PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO
CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290,
ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE

OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION"
OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT
ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF
THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE
ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD
BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts
off with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on
the 1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an
"Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start the signature
campaign to amend the Constitution or to put the movement to gather signatures under COMELEC
power and function. On the substantive allegations of the petitioners, Delfin maintains as follows:

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence therein of a
subtitle for such initiative is not fatal, since subtitles are not requirements for the
validity or sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as may be
necessary to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to,
the Constitution because it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay term limits. It does not seek to
reexamine or overhaul the entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180
million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a
plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements
for initiative will be a priority government expense because it will be for the exercise of the sovereign
power of the people.

In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of
the Solicitor General contends that:

(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution.
Its Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees
that power; and its Section 3, which enumerates the three systems of initiative,
includes initiative on the Constitution and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system of initiative is deemed included in
the subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.
 (4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC.

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b)
noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by
private respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the
counsel for private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for
the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul
Roco and allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set
the case for hearing on 23 January 1997 at 9:30 a.m.

On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of
Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention.
Attached to the motion was their Petition in Intervention, which was later replaced by an Amended
Petition in Intervention wherein they contend that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a
change from a political philosophy that rejects unlimited tenure to one that accepts
unlimited tenure; and although the change might appear to be an isolated one, it can
affect other provisions, such as, on synchronization of elections and on the State
policy of guaranteeing equal access to opportunities for public service and prohibiting
political dynasties. 19 A revision cannot be done by initiative which, by express
provision of Section 2 of Article XVII of the Constitution, is limited to amendments.

(2) The prohibition against reelection of the President and the limits provided for all
other national and local elective officials are based on the philosophy of governance,
"to open up the political arena to as many as there are Filipinos qualified to handle
the demands of leadership, to break the concentration of political and economic
powers in the hands of a few, and to promote effective proper empowerment for
participation in policy and decision-making for the common good"; hence, to remove
the term limits is to negate and nullify the noble vision of the 1987 Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with the performance of their
elective officials, but not as a premium for good performance. 20

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law
that implements the people's initiative on amendments to the Constitution. It fails to
state (a) the proper parties who may file the petition, (b) the appropriate agency
before whom the petition is to be filed, (c) the contents of the petition, (d) the
publication of the same, (e) the ways and means of gathering the signatures of the
voters nationwide and 3% per legislative district, (f) the proper parties who may
oppose or question the veracity of the signatures, (g) the role of the COMELEC in the
verification of the signatures and the sufficiency of the petition, (h) the appeal from
any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the
 appropriation of funds for such people's initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear Delfin's petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a people's initiative under Section 2 of Article XVII of the Constitution.
That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not
constitute a legal basis for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in

Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to
initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill
No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He
likewise submits that the COMELEC was empowered under Section 20 of that law to promulgate
COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent Commission is
without jurisdiction to take cognizance of the Delfin Petition and to order its publication because the
said petition is not the initiatory pleading contemplated under the Constitution, Republic Act No.
6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an
initiative on the Constitution is the filing of a petition for initiative which is signed by the required
number of registered voters. He also submits that the proponents of a constitutional amendment
cannot avail of the authority and resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELEC's role in an initiative on the Constitution is limited to the
determination of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if
warranted.

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it attached a Petition in
Intervention raising the following arguments:

(1) Congress has failed to enact an enabling law mandated under Section 2, Article
XVII of the 1987 Constitution.

(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed
only by Congress or a constitutional convention. 22

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by
the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b)
admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention
of Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of
five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and
the respondents to comment thereon within a nonextendible period of five days from receipt of the
said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues,
which the Court formulated in light of the allegations and arguments raised in the pleadings so far
filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of
specific provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed
in the draft "Petition for Initiative on the 1987 Constitution," would constitute a
revision of, or an amendment to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature
gathering; (b) instructing municipal election officers to assist Delfin's movement and
volunteers in establishing signature stations; and (c) directing or causing the
publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987
Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.

After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.

On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the COMELEC should have dismissed the
Delfin Petition for failure to state a sufficient cause of action and that the Commission's failure or
refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction.

On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record
of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee,
Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate
Bill No. 17.

Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the
Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in
due time, their separate memoranda. 24

As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which
appears to pose a prejudicial procedural question.

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF

THE DELFIN PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there
is a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition
for prohibition is the proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing
the inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of
the highly divisive and adverse environmental consequences on the body politic of
the questioned Comelec order. The consequent climate of legal confusion and
political instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin
Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the
petition. 26 The COMELEC made no ruling thereon evidently because after having heard the
arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to
submit within five days their memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6
December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause the
publication of the petition, together with the attached Petition for Initiative, the signature form, and
the notice of hearing; and by setting the case for hearing. The COMELEC's failure to act on Roco's
motion to dismiss and its insistence to hold on to the petition rendered ripe and viable the instant
petition under Section 2 of Rule 65 of the Rules of Court, which provides:

Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation,
board, or person, whether exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion, and there is no
appeal or any other plain, speedy and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered commanding
the defendant to desist from further proceedings in the action or matter specified
therein.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the
Delfin Petition because the said petition is not supported by the required minimum number of
signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its
discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of
signatures. In light of these claims, the instant case may likewise be treated as a special civil action
for certiorari under Section I of Rule 65 of the Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush
aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28

A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality
because the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS

TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT
SYSTEM.

Section 2 of Article XVII of the Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein. No amendment under
this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986
Constitutional Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode
of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution
through the system of initiative would remain entombed in the cold niche of the Constitution
until Congress provides for its implementation. Stated otherwise, while the Constitution has
recognized or granted that right, the people cannot exercise it if Congress, for whatever
reason, does not provide for its implementation.

This system of initiative was originally included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That
section reads as follows:

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
 (a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article___
Section ___of the Constitution. 31

After several interpellations, but before the period of amendments, the Committee submitted
a new formulation of the concept of initiative which it denominated as Section 2; thus:

MR. SUAREZ. Thank you, Madam President. May we respectfully

call attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed
provision governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the permission of
the Members, may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.

This completes the blanks appearing in the original Committee Report No. 7. 32

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:

FR. BERNAS. Madam President, just two simple, clarificatory

questions.

First, on Section 1 on the matter of initiative upon petition of at least

10 percent, there are no details in the provision on how to carry this
out. Do we understand, therefore, that we are leaving this matter to
the legislature?

MR. SUAREZ. That is right, Madam President.

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

as the legislature does not pass the necessary implementing law on
this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee
hearing, especially with respect to the budget appropriations which
would have to be legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the legislature. The
Gentleman is right. In any event, as envisioned, no amendment
through the power of initiative can be called until after five years from
the date of the ratification of this Constitution. Therefore, the first
amendment that could be proposed through the exercise of this
initiative power would be after five years. It is reasonably expected
that within that five-year period, the National Assembly can come up
with the appropriate rules governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature — the details
on how this is to be carried out — is it possible that, in effect, what
will be presented to the people for ratification is the work of the
legislature rather than of the people? Does this provision exclude that
possibility?

MR. SUAREZ. No, it does not exclude that possibility because even
the legislature itself as a body could propose that amendment, maybe
individually or collectively, if it fails to muster the three-fourths vote in
order to constitute itself as a constituent assembly and submit that
proposal to the people for ratification through the process of an
initiative.

xxx xxx xxx

MS. AQUINO. Do I understand from the sponsor that the intention in

the proposal is to vest constituent power in the people to amend the
Constitution?

MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the

proposal in terms of institutionalizing popular participation in the
drafting of the Constitution or in the amendment thereof, but I would
have a lot of difficulties in terms of accepting the draft of Section 2, as
written. Would the sponsor agree with me that in the hierarchy of
legal mandate, constituent power has primacy over all other legal
mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the
hierarchy of legal values, the Constitution is source of all legal
mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of the
Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of

constituent power we have a separate article in the constitution that
would specifically cover the process and the modes of amending the
Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions

are drafted now, to again concede to the legislature the process or
 the requirement of determining the mechanics of amending the
Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be

placed in the hands of the National Assembly, not unless we can
incorporate into this provision the mechanics that would adequately
cover all the conceivable situations. 33

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals
to AMEND — not to REVISE — the Constitution; thus:

MR. SUAREZ. . . . This proposal was suggested on the theory that

this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the
traditional modes of amending the Constitution as embodied in
Section 1. The committee members felt that this system of initiative
should not extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision. 34

xxx xxx xxx

MS. AQUINO. In which case, I am seriously bothered by providing

this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph
(c) of Section 1, instead of setting it up as another separate section
as if it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a

while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to

distinguish the coverage of modes (a) and (b) in Section 1 to include
the process of revision; whereas the process of initiation to amend,
which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee. 35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G.
Davide, Jr., which the Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute

the entire Section 2 with the following:

MR. DAVIDE. Madam President, I have modified the proposed

amendment after taking into account the modifications submitted by
 the sponsor himself and the honorable Commissioners Guingona,
Monsod, Rama, Ople, de los Reyes and Romulo. The modified
amendment in substitution of the proposed Section 2 will now read as
follows: "SECTION 2. — AMENDMENTS TO THIS CONSTITUTION
MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER Of REGISTERED VOTERS,
OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE

IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed

amendment is reflective of the sense contained in Section 2 of our
completed Committee Report No. 7, we accept the proposed
amendment. 36

The interpellations which ensued on the proposed modified amendment to Section 2 clearly
showed that it was a legislative act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it

possible for the legislature to set forth certain procedures to carry out
the initiative. . .?

MR. DAVIDE. It can.

xxx xxx xxx

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

prevent the legislature from asking another body to set the
proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the

implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of
the requirement.

MR. ROMULO. But the procedures, including the determination of the

proper form for submission to the people, may be subject to
legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to

initiate. In other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here.
 MR. ROMULO. In that provision of the Constitution can the
procedures which I have discussed be legislated?

MR. DAVIDE. Yes. 37

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to — NOT REVISION of — the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's

proposed amendment on line 1 refers to "amendment." Does it not
cover the word "revision" as defined by Commissioner Padilla when
he made the distinction between the words "amendments" and
"revision"?

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

should be covered by Section 1. So insofar as initiative is concerned,
it can only relate to "amendments" not "revision." 38

Commissioner Davide further emphasized that the process of proposing amendments

through initiative must be more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal,

what is involved is an amendment to the Constitution. To amend a
Constitution would ordinarily require a proposal by the National
Assembly by a vote of three-fourths; and to call a constitutional
convention would require a higher number. Moreover, just to submit
the issue of calling a constitutional convention, a majority of the
National Assembly is required, the import being that the process of
amendment must be made more rigorous and difficult than probably
initiating an ordinary legislation or putting an end to a law proposed
by the National Assembly by way of a referendum. I cannot agree to
reducing the requirement approved by the Committee on the
Legislative because it would require another voting by the Committee,
and the voting as precisely based on a requirement of 10 percent.
Perhaps, I might present such a proposal, by way of an amendment,
when the Commission shall take up the Article on the Legislative or
on the National Assembly on plenary sessions. 39

The Davide modified amendments to Section 2 were subjected to amendments, and the final
version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended,

reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS,
OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
 FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE

FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT. 40

The entire proposed Article on Amendments or Revisions was approved on second reading
on 9 July 1986. 41Thereafter, upon his motion for reconsideration, Commissioner Gascon was
allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In
view thereof, the Article was again approved on Second and Third Readings on 1 August
1986. 42

However, the Committee on Style recommended that the approved Section 2 be amended by
changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the
second paragraph so that said paragraph reads: The Congress 43 shall provide for the
implementation of the exercise of this right. 44 This amendment was approved and is the text of the
present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under
Section 2 of Article XVII of the Constitution is not self-executory.

Has Congress "provided" for the implementation of the exercise of this right? Those who answer the
question in the affirmative, like the private respondents and intervenor Senator Roco, point to us
R.A. No. 6735.

There is, of course, no other better way for Congress to implement the exercise of the right than
through the passage of a statute or legislative act. This is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article
XVII then reading:

The Congress 45 shall by law provide for the implementation of the exercise of this
right.

with

The Congress shall provide for the implementation of the exercise of this right.

This substitute amendment was an investiture on Congress of a power to provide for the
rules implementing the exercise of the right. The "rules" means "the details on how [the right]
is to be carried out." 46

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill
No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House
of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which
dealt with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with
the subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of
Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances
or resolutions of local government units. The Bicameral Conference Committee consolidated Senate
Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June
1989 by the Senate 50 and by the House of Representatives. 51 This approved bill is now R.A. No.
6735.

But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not
suggest an initiative on amendments to the Constitution. The said section reads:

Sec. 2. Statement and Policy. — The power of the people under a system of initiative
and referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (Emphasis supplied).

The inclusion of the word "Constitution" therein was a delayed afterthought. That word is
neither germane nor relevant to said section, which exclusively relates to initiative and
referendum on national laws and local laws, ordinances, and resolutions. That section is
silent as to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not accorded the
power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution"
through the system of initiative. They can only do so with respect to "laws, ordinances, or
resolutions."

The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1
of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum
and appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in
part." 52

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to
the Constitution and mentions it as one of the three systems of initiative, and that Section 5
(Requirements) restates the constitutional requirements as to the percentage of the registered voters
who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does
not provide for the contents of a petition for initiative on the Constitution. Section 5, paragraph (c)
requires, among other things, statement of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be. It does not include, as among the contents of
the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the
Constitution. Said paragraph (c) reads in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

 c.4 that it is not one of the exceptions provided therein;

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

c.6 an abstract or summary proposition is not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
(Emphasis supplied).

The use of the clause "proposed laws sought to be enacted, approved or rejected, amended
or repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes
initiative on amendments to the Constitution.

Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for
Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution.
This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and
referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have provided for a
subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of
values, the right of the people to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.

We cannot accept the argument that the initiative on amendments to the Constitution is subsumed
under the subtitle on National Initiative and Referendum because it is national in scope. Our reading
of Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum)
leaves no room for doubt that the classification is not based on the scope of the initiative involved,
but on its nature and character. It is "national initiative," if what is proposed to be adopted or enacted
is a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to
be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the
governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass.
This classification of initiative into national and local is actually based on Section 3 of the Act, which
we quote for emphasis and clearer understanding:

Sec. 3. Definition of terms —

xxx xxx xxx

There are three (3) systems of initiative, namely:

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

the Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national

legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a

regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Emphasis supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on initiative
on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate. Provisions not
germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs
(b) and (c) of Section 9, which reads:

(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in
an election called for the purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission. (Emphasis supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative
bodies of local governments; thus:

Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined
by law, may file a petition for indirect initiative with the House of Representatives,
and other legislative bodies. . . .

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings
of sufficiency or insufficiency of the petition for initiative or referendum, which could be
petitions for both national and local initiative and referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced, 54 since the provision therein applies to both national and local initiative
and referendum. It reads:

Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to this
Act for violation of the Constitution or want of capacity of the local legislative body to
enact the said measure.

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in
the implementation of initiative and referendum on national and local legislation thereby giving them
special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to
the Constitution. Anent the initiative on national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its
approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general
circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition. 55

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the
power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government unit
concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered
voters for their approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative
on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3;
(c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution
may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the
number of voters who should sign the petition; and (e) provides for the date of effectivity of the
approved proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments
to the Constitution by merely paying it a reluctant lip service. 57

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting
in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned. Its lacunae on this substantive matter are fatal and cannot be cured by "empowering" the
COMELEC "to promulgate such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as
follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the
Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to

promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above.
However, in every case of permissible delegation, there must be a showing that the delegation itself
is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b) fixes a standard — the limits of which
are sufficiently determinate and determinable — to which the delegate must conform in the
performance of his functions. 61 A sufficient standard is one which defines legislative policy, marks its
limits, maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. 62

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735
miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power
to the COMELEC is then invalid.

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND

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

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

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION

IN ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress
to implement the right to initiate constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid,
the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin
Petition.

Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for
initiative on the Constitution must be signed by at least 12% of the total number of registered voters
of which every legislative district is represented by at least 3% of the registered voters therein. The
Delfin Petition does not contain signatures of the required number of voters. Delfin himself admits
that he has not yet gathered signatures and that the purpose of his petition is primarily to obtain
assistance in his drive to gather signatures. Without the required signatures, the petition cannot be
deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then
is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc.
The only participation of the COMELEC or its personnel before the filing of such petition are (1) to
prescribe the form of the petition; 63 (2) to issue through its Election Records and Statistics Office a
certificate on the total number of registered voters in each legislative district; 64 (3) to assist, through
its election registrars, in the establishment of signature stations; 65 and (4) to verify, through its
election registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and
voters' identification cards used in the immediately preceding election. 66

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution
No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent
Commission must have known that the petition does not fall under any of the actions or proceedings
under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not
assign to the petition a docket number. Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not
have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the
order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it,
the COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its
time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term
limits of elective national and local officials is an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should
not tarry any longer in complying with the constitutional mandate to provide for the implementation of
the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing
rules and regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-
037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ.,
concur.

Padilla, J., took no part.

Separate Opinions

PUNO, J., concurring and dissenting:

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it
orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that
R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the
people's initiative to amend the Constitution. I likewise submit that the petition with respect to the
Pedrosas has no leg to stand on and should be dismissed. With due respect:

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate
amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735
should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for
the intent of the legislature is the law and the controlling factor in its interpretation.1 Stated otherwise,
intent is the essence of the law, the spirit which gives life to its enactment.2

Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative
to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the
history of the law which was a consolidation of House Bill No. 215053 and Senate Bill No. 17.4 Senate
Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the
Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact
Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local
Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose
amendments to the Constitution. In checkered contrast, House Bill No. 21505 5expressly included
people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in
his sponsorship remarks:6

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional
basis of the proposed measure.

1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced
by the 1935 Constitution saw the application of the principle of separation of powers.

2. While under the parliamentary system of the 1973 Constitution the principle
remained applicable, the 1981 amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.

Constitutional history then saw the shifting and sharing of legislative powers between
the Legislature and the Executive departments. Transcending changes in the
exercise of legislative power is the declaration in the Philippine Constitution that the
Philippines is a republican state where sovereignty resides in the people and all
sovereignty emanates from them.

3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress;
however, to institutionalize direct action of the people as exemplified in the 1986
Revolution, the Constitution recognizes the power of the people, through the system
of initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have
plenary powers since reserve powers are given to the people expressly. Section 32
of the same Article mandates Congress to pass at the soonest possible time, a bill on
referendum and initiative, and to share its legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the
people the power to directly propose amendments to the Constitution through
initiative, upon petition of at least 12 percent of the total number of registered voters.

Stating that House Bill No. 21505 is the Committee's response to the duty imposed
on Congress to implement the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the system of initiative and
referendum under Philippine Law. He cited Section 99 of the Local Government
Code which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the Sangguniang
Barangay, all of which are variations of the power of initiative and referendum. He
added that the holding of barangay plebiscites and referendum are likewise provided
in Sections 100 and 101 of the same Code.

Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the
subject which he will later submit to the Secretary of the House be incorporated as
part of his sponsorship speech.

He then cited examples of initiative and referendum similar to those contained in the
instant Bill among which are the constitutions of states in the United States which
recognize the right of registered voters to initiate the enactment of any statute or to
project any existing law or parts thereof in a referendum. These states, he said, are
Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and
practically all other states.
Mr. Roco explained that in certain American states, the kind of laws to which initiative
and referendum apply is also without limitation, except for emergency measures,
which are likewise incorporated in House Bill No. 21505. He added that the
procedure provided by the Bill from the filing of the petition, the requirements of a
certain percentage of supporters to present a proposition, to the submission to
electors are substantially similar to the provisions in American laws. Although an
infant in Philippine political structure, the system of initiative and referendum, he said,
is a tried and tested system in other jurisdictions, and the Bill is patterned after
American experience.

He further explained that the bill has only 12 sections, and recalled that the
Constitutional Commissioners saw the system of the initiative and referendum as an
instrument which can be used should the legislature show itself to be indifferent to
the needs of the people. This is the reason, he claimed, why now is an opportune
time to pass the Bill even as he noted the felt necessity of the times to pass laws
which are necessary to safeguard individual rights and liberties.

At this juncture Mr. Roco explained the process of initiative and referendum as
advocated in House Bill No. 21505. He stated that:

1. Initiative means that the people, on their own political judgment, submit a Bill for
the consideration of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the
Constitution once every five years; the initiative to amend statutes approved by
Congress; and the initiative to amend local ordinances.

3. The instant Bill gives a definite procedure and allows the Commission on Elections
(COMELEC) to define rules and regulations on the power of initiative.

4. Referendum means that the legislators seek the consent of the people on
measures that they have approved.

5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of
plebiscite by presenting a petition therefor, but under certain limitations, such as the
signing of said petition by at least 10 percent of the total of registered voters at which
every legislative district is represented by at least three percent of the registered
voters thereof. Within 30 days after receipt of the petition, the COMELEC shall
determine the sufficiency of the petition, publish the same, and set the date of the
referendum within 45 to 90-day period.

6. When the matter under referendum or initiative is approved by the required

number of votes, it shall become effective 15 days following the completion of its
publication in the Official Gazette.

In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot
ignore the people's call for initiative and referendum and urged the Body to approve
House Bill No. 21505.

At this juncture, Mr. Roco also requested that the prepared text of his speech
together with the footnotes be reproduced as part of the Congressional Records.
The same sentiment as to the bill's intent to implement people's initiative to amend the
Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador
Escudero III in his sponsorship remarks, viz:7

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ESCUDERO

Mr. Escudero first pointed out that the people have been clamoring for a truly popular
democracy ever since, especially in the so-called parliament of the streets. A
substantial segment of the population feels, he said, that the form of democracy is
there, but not the reality or substance of it because of the increasingly elitist
approach of their representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has provided a means
whereby the people can exercise the reserved power of initiative to propose
amendments to the Constitution, and requested that Sections 1 and 32, Article VI;
Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of
his sponsorship remarks.

Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups, he continued, it will hasten
the politization of the citizenry, aid the government in forming an enlightened public
opinion, and produce more responsive legislation. The passage of the Bill will also
give street parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.

Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so
that it can be initially used for the Agrarian Reform Law. He said that the passage of
House Bill No. 21505 will show that the Members can set aside their personal and
political consideration for the greater good of the people.

The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed
out in a Bicameral Conference Committee.8 In the meeting of the Committee on June 6,
1989,9 the members agreed that the two (2) bills should be consolidated and that the
consolidated version should include people's initiative to amend the Constitution as
contemplated by House Bill No. 21505. The transcript of the meeting states:

xxx xxx xxx

CHAIRMAN GONZALES. But at any rate, as I have said, because

this is new in our political system, the Senate decided on a more
cautious approach and limiting it only to the local government units
because even with that stage where . . . at least this has been quite
popular, ano? It has been attempted on a national basis. Alright.
There has not been a single attempt. Now, so, kami limitado doon.
And, second, we consider also that it is only fair that the local
legislative body should be given a chance to adopt the legislation bill
proposed, right? Iyong sinasabing indirect system of initiative. If after
all, the local legislative assembly or body is willing to adopt it in full
or in toto, there ought to be any reason for initiative, ano for initiative.
 And, number 3, we feel that there should be some limitation on the
frequency with which it should be applied. Number 4, na the people,
thru initiative, cannot enact any ordinance that is beyond the scope of
authority of the local legislative body, otherwise, my God, mag-
aassume sila ng power that is broader and greater than the grant of
legislative power to the Sanggunians. And Number 5, because of
that, then a proposition which has been the result of a successful
initiative can only carry the force and effect of an ordinance and
therefore that should not deprive the court of its jurisdiction to declare
it null and void for want of authority. Ha, di ba? I mean it is beyond
powers of local government units to enact. Iyon ang main essence
namin, so we concentrated on that. And that is why . . . so ang sa
inyo naman includes iyon sa Constitution, amendment to the
Constitution eh . . . national laws. Sa amin, if you insist on that,
alright, although we feel na it will in effect become a dead statute.
Alright, and we can agree, we can agree. So ang mangyayari dito,
and magiging basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill or whether it is
the House bill. Logically it should be ours sapagkat una iyong sa amin
eh. It is one of the first bills approved by the Senate kaya ang number
niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you
insist, really iyong features ng national at saka constitutional, okay.
____ gagawin na natin na consolidation of both bills.

HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill

No. so and so. 10

When the consolidated bill was presented to the House for approval, then Congressman
Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered
people's initiative to amend the Constitution. The record of the House Representative
states: 11

xxx xxx xxx

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines

Sur is recognized.

MR. ROCO. On the Conference Committee Report on the

disagreeing provisions between Senate Bill No. 21505 which refers to
the system providing for the initiative and referendum, fundamentally,
Mr. Speaker, we consolidated the Senate and the House versions, so
both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House
Representatives correctly provided for initiative and referendum on
the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the
Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few

questions?

THE SPEAKER PRO TEMPORE. The Gentlemen will please

proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the
two bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provide purely for local
initiative and referendum, whereas in the House version, we provided
purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding therefore, that the two

provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and

referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance

with the provision of the Constitution whereby it mandates this
Congress to enact the enabling law, so that we shall have a system
which can be done every five years. Is it five years in the provision of
the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional

amendments in the 1987 Constitution, it is every five years.

MR. ALBANO. For every five years, Mr. Speaker?

MR. ROCO. Within five years, we cannot have multiple initiatives and
referenda.

MR. ALBANO. Therefore, basically, there was no substantial

difference between the two versions?
 MR. ROCO. The gaps in our bill were filled by the Senate which, as I
said earlier, ironically was about local, provincial and municipal
legislation.

MR. ALBANO. And the two bills were consolidated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated
bill on Senate Bill No. 17 and House Bill No. 21505.

Is there any objection? (Silence. The Chair hears none; the motion is approved.

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to
amend the Constitution, it is our bounden duty to interpret the law as it was intended by the
legislature. We have ruled that once intent is ascertained, it must be enforced even if it may
not be consistent with the strict letter of the law and this ruling is as old as the mountain. We
have also held that where a law is susceptible of more than one interpretation, that
interpretation which will most tend to effectuate the manifest intent of the legislature will be
adopted. 12

The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to
implement the people's initiative to amend the Constitution. To be sure, we need not torture the text
of said law to reach the conclusion that it implements people's initiative to amend the Constitution.
R.A. No. 6735 is replete with references to this prerogative of the people.

First, the policy statement declares:

Sec. 2. Statement of Policy. — The power of the people under a system of initiative
and referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (emphasis supplied)

Second, the law defines "initiative" as "the power of the people to propose amendments to the
constitution or to propose and enact legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on the Constitution is approved or
rejected by the people.

Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section
5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least threeper centum (3%) of the registered voters therein." It also
states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to
defeat its intent which it itself concedes is to implement people's initiative to propose amendments to
the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the
policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be
expected for laws are not always written in impeccable English. Rightly, the Constitution does not
require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose
Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to
refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished
Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately.
But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative
intention can be ascertained. The same is equally true with reference to awkward, slovenly, or
ungrammatical expressions, that is, such expressions and words will be construed as carrying the
meaning the legislature intended that they bear, although such a construction necessitates a
departure from the literal meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the
Constitution simply because it lacks a sub-title on the subject should be given the weight of helium.
Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and
sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are
entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14

All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or
spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly
disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the
law is its body but its spirit is its soul. 15

II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee
Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative
to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A.
No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to
promulgate such rules and regulations as may be necessary to carry out the purposes of this Act."
By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez
v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to
determine whether there is undue delegation of legislative power, viz:

xxx xxx xxx

Although Congress may delegate to another branch of the Government the power to
fill details in the execution, enforcement or administration of a law, it is essential, to
forestall a violation of the principle of separation of powers, that said law: (a) be
complete in itself — it must set forth therein the policy to be executed, carried out or
implemented by the delegate — and (b) to fix standard — the limits of which are
sufficiently determinate or determinable — to which the delegate must conform in the
performance of his functions. Indeed, without a statutory declaration of policy, which
is the essence of every law, and, without the aforementioned standard, there would
be no means to determine, with reasonable certainty, whether the delegate has
 acted within or beyond the scope of his authority. Hence, he could thereby arrogate
upon himself the power, not only to make the law, but, also — and this is worse — to
unmake it, by adopting measures inconsistent with the end sought to be attained by
the Act of Congress, thus nullifying the principle of separation of powers and the
system of checks and balances, and, consequently, undermining the very foundation
of our republican system.

Section 68 of the Revised Administrative Code does not meet these well-settled
requirements for a valid delegation of the power to fix the details in the enforcement
of a law. It does not enunciate any policy to be carried out or implemented by the
President. Neither does it give a standard sufficiently precise to avoid the evil effects
above referred to.

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in
promulgating the law's implementing rules and regulations of the law. As aforestated, section 2
spells out the policy of the law; viz: "The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the
standards to canalize the delegated power to the COMELEC to promulgate rules and regulations
from overflowing. Thus, the law states the number of signatures necessary to start a people's
initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon
filing of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be
held, 22 when the amendment takes effect 23 and what matters may not be the subject of any
initiative. 24 By any measure, these standards are adequate.

Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out
the boundaries of the delegates' authority by defining the legislative policy and indicating the
circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is
to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In
enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law
implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will
show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the
people's initiative to amend the Constitution. The debates 26 in the Constitutional Commission make it
clear that the rules of procedure to enforce the people's initiative can be delegated, thus:

MR. ROMULO. Under Commissioner Davide's amendment, it is

possible for the legislature to set forth certain procedures to carry out
the initiative. . . ?

MR. DAVIDE. It can.

xxx xxx xxx

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

prevent the legislature from asking another body to set the
proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the

implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of
the requirement.
 MR. DAVIDE. As long as it will not destroy the substantive right to
initiate. In other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the

procedures which I have discussed be legislated?

MR. DAVIDE. Yes.

In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed:
"In response to questions of Commissioner Romulo, Davide explained the extent of the
power of the legislature over the process: it could for instance, prescribe the 'proper form
before (the amendment) is submitted to the people,' it could authorize another body to check
the proper form. It could also authorize the COMELEC, for instance, to check the authenticity
of the signatures of petitioners. Davide concluded: 'As long as it will not destroy the
substantive right to initiate. In other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here.'" Quite clearly, the
prohibition against the legislature is to impair the substantive right of the people to initiate
amendments to the Constitution. It is not, however, prohibited from legislating the procedure
to enforce the people's right of initiative or to delegate it to another body like the COMELEC
with proper standard.

A survey of our case law will show that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of adequate legislative standard to guide their
promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly
pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare
the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United
States, 29 viz:

xxx xxx xxx

It is true that the Act does not in terms establish a particular standard to which orders
of the military commander are to conform, or require findings to be made as a
prerequisite to any order. But the Executive Order, the Proclamations and the statute
are not to be read in isolation from each other. They were parts of a single program
and must be judged as such. The Act of March 21, 1942, was an adoption by
Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order — the necessity
of protecting military resources in the designated areas against espionage and
sabotage.

In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20
look at the law cannot miss them. They were not written by our legislators in invisible ink.
The policy and standards can also be found in no less than section 2, Article XVII of the
Constitution on Amendments or Revisions. There is thus no reason to hold that the
standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as
adequate more general standards such as "simplicity and dignity," 30 "public
interest," 31 "public welfare," 32 "interest of law and order," 33 "justice and equity,"34 "adequate
and efficient instruction," 35 "public safety," 36 "public policy", 37 "greater national
interest", 38 "protect the local consumer by stabilizing and subsidizing domestic pump
rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due regard
and respect to the legislature, a co-equal and coordinate branch of government, should
 counsel this Court to refrain from refusing to effectuate laws unless they are clearly
unconstitutional.

III

It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas.
The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at
bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to
Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas
did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by
the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition,
the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the
People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for
prohibition with prayer for temporary restraining order and/or writ of preliminary injunction.

The petition on its face states no cause of action against the Pedrosas. The only allegation against
the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the
signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an
organization was not impleaded as a respondent. Petitioners then prayed that we order the
Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the
Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a
signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift
the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions
for contempt against them without equivocation.

One need not draw a picture to impart the proposition that in soliciting signatures to start a people's
initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their
solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the
Constitution which provides that ". . . amendments to this Constitution may likewise be directly
proposed by the people through initiative. . ." This right springs from the principle proclaimed in
section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides
in the people and all government authority emanates from them." The Pedrosas are part of the
people and their voice is part of the voice of the people. They may constitute but a particle of our
sovereignty but no power can trivialize them for sovereignty is indivisible.

But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and
their organizations to effective and reasonable participation at all levels of social, political and
economic decision-making shall not be abridged. The State shall by law, facilitate the establishment
of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution
strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decision-making process of our people.
The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a
question mark on their right.

Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an
exercise of their freedom of speech and expression and their right to petition the government for
redress of grievances. We have memorialized this universal right in all our fundamental laws from
the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that
freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably,
freedom of speech enervates the essence of the democratic creed of think and let think. For this
reason, the Constitution encourages speech even if it protects the speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to
amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC
Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To
be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the
predicate of progress and we should not fear change. Mankind has long recognized the truism that
the only constant in life is change and so should the majority.

IV

In a stream of cases, this Court has rhapsodized people power as expanded in the 1987
Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article
of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be
trusted to check excesses of government and that any effort to trivialize the effectiveness of people's
initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a
matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate
exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a
recall election in Caloocan City involving the mayor and ordered that he submits his right to continue
in office to the judgment of the tribunal of the people. Thus far, we have succeeded in transforming
people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage
people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to
amend the Constitution without setting back the flowering of people empowerment. More important,
the Court cannot seal the lips of people who are pro-change but not those who are anti-change
without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a
dialogue and not by a monologue for in a democracy nobody can claim any infallibility.

Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting:

The COMELEC should have dismissed, outrightly, the Delfin Petition.

It does seem to me that there is no real exigency on the part of the Court to engross, let alone to
commit, itself on all the issues raised and debated upon by the parties. What is essential at this time
would only be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus
S. Delfin in his capacity as a "founding member of the Movement for People's Initiative" and seeking
through a people initiative certain modifications on the 1987 Constitution, can properly be regarded
and given its due course. The Constitution, relative to any proposed amendment under this method,
is explicit. Section 2, Article XVII, thereof provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein. No amendment under
this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives,
the petition would rather have much of its burden passed on, in effect, to the COMELEC. The
petition would require COMELEC to schedule "signature gathering all over the country," to cause the
necessary publication of the petition "in newspapers of general and local circulation," and to instruct
"Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in
establishing signing stations at the time and on the dates designated for the purpose.

I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made
permanent under theponencia should be held to cover only the Delfin petition and must not be so
understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The
grant of such a right is clearly implicit in the constitutional mandate on people initiative.

The distinct greatness of a democratic society is that those who reign are the governed themselves.
The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has
taught us that the vitality of government lies not so much in the strength of those who lead as in the
consent of those who are led. The role of free speech is pivotal but it can only have its true meaning
if it comes with the correlative end of being heard.

Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the
Court, I most respectfully submit, to yet refrain from resolving the question of whether or not
Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on
right of the people to directly propose constitutional amendments. Any opinion or view formulated by
the Court at this point would at best be only a non-binding, albeitpossibly persuasive, obiter dictum.

I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued
by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for
constitutional amendments.

FRANCISCO, J., dissenting and concurring:

There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and
well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is
inadequate to cover the system of initiative on amendments to the Constitution.

To begin with, sovereignty under the constitution, resides in the people and all government authority
emanates from them.1 Unlike our previous constitutions, the present 1987 Constitution has given
more significance to this declaration of principle for the people are now vested with power not only to
propose, enact or reject any act or law passed by Congress or by the local legislative body, but to
propose amendments to the constitution as well.2 To implement these constitutional edicts, Congress
in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act".
This law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by
petitioners is based principally on the alleged lack of sub-title in the law on initiative to amend the
constitution and on their allegation that:

Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional amendments take effect upon
ratification not after publication.3

which allegation manifests petitioners' selective interpretation of the law, for under Section 9
of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph
(b) thereof is clear in providing that:
The proposition in an initiative on the constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every
part of the statute must be construed together with the other parts and kept subservient to the
general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be
interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a
whole.5

In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to
propose amendments to the constitution or to propose and enact legislations through an election
called for the purpose".6The same section, in enumerating the three systems of initiative, included an
"initiative on the constitution which refers to a petition proposing amendments to the
constitution"7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which
an initiative on the constitution is approved or rejected by the people" And as to the material
requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following:

A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of the registered voters as signatories, of which
every legislative district must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the constitution may be exercised only after
five (5) years from the ratification of the 1987 Constitution and only once every five
years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by way of initiative.
"A legal provision", the Court has previously said, "must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or
having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by
the deliberations in Congress, thus:

. . . More significantly, in the course of the consideration of the Conference

Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill
No. 21505, it was noted:

MR. ROCO. On the Conference Committee Report on the

disagreeing provisions between Senate Bill No. 17 and the
consolidated House Bill No. 21505 which refers to the system
providing for the initiative and referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the House versions, so
both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House of
Representatives correctly provided for initiative and referendum an
the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO, Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the

Minority Floor Leader?
 MR. ALBANO. Will the distinguished sponsor answer just a few
questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.

THE SPEAKER PRO TEMPORE. The Gentleman will please

proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the
two bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provided purely for local
initiative and referendum, whereas in the House version, we provided
purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two

provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and

referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance

with the provision of the Constitution to enact the enabling law, so
that we shall have a system which can be done every five years. Is it
five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional

amendments to the 1987 Constitution, it is every five years." (Id.
[Journal and Record of the House of Representatives], Vol. VIII, 8
June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279,
292-293 [1994]; emphasis supplied)

. . . The Senate version of the Bill may not have comprehended initiatives on the
Constitution. When consolidated, though, with the House version of the Bill and as
approved and enacted into law, the proposal included initiative on both the
Constitution and ordinary laws.9
 Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other
construction as what petitioners foist upon the Court constitute a betrayal of the intent and
spirit behind the enactment.

At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any
action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996
[Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private
respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would
appear that proof of procurement of the required percentage of registered voters at the time the
petition for initiative is filed, is a jurisdictional requirement.

Thus:

A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every
legislative district must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the Constitution may be exercised only after
five (5) years from the ratification of the 1987 Constitution and only once every five
(5) years thereafter.

Here private respondents' petition is unaccompanied by the required signatures. This defect
notwithstanding, it is without prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private respondents. In the absence,
therefore, of an appropriate petition before the Commission on Elections, any determination
of whether private respondents' proposal constitutes an amendment or revision is premature.

ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an
"inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I,
however, register my concurrence with the dismissal, in the meantime, of private respondents'
petition for initiative before public respondent Commission on Elections until the same be supported
by proof of strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting:

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the
"initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through
initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned."

(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of
initiative on amendments to the Constitution, is void."
I concur with the first item above. Until and unless an initiatory petition can show the required
number of signatures — in this case, 12% of all the registered voters in the Philippines with at least
3% in every legislative district — no public funds may be spent and no government resources may
be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any
petition absent such signatures. However, I dissent most respectfully from the majority's two other
rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be
amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by
all the voters of the country acting together. This decision will effectively but unnecessarily curtail,
nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the
majority holds the right hostage to congressional discretion on whether to pass a new law to
implement it, when there is already one existing at present. This right to amend through initiative, it
bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein. No amendment under
this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.

With all due respect, I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him
of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby
preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the
Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed,
there is a right way to do the right thing at the right time and for the right reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec
Resolution 2300 Are Sufficient to Implement Constitutional Initiatives

While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by
the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution.1 I completely agree with the inspired and inspiring opinions of Mr.
Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on
initiative, sufficiently implements the right of the people to initiate amendments to the Constitution.
Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this
Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on
Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their
purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and
in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to
be rejected."

No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735
wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may
be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its
Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to
govern the conduct of initiative on the Constitution and initiative and referendum on national and
local laws," not by the incumbent Commission on Elections but by one then composed of Acting
Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores,
Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution
2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them,
other than an honest, sincere and exemplary effort to give life to a cherished right of our people.

The majority argues that while Resolution 2300 is valid in regard to national laws and local
legislations, it is void in reference to constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is the same law, RA 6735.

I respectfully submit that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient
authority to implement, effectuate and realize our people's power to amend the Constitution.

Petitioner Delfin and the Pedrosa

Spouses Should Not Be Muzzled

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this
Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from
exercising their right of initiative. In fact, I believe that such restraining order as against private
respondents should not have been issued, in the first place. While I agree that the Comelec should
be stopped from using public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from exercising their right of initiative.
The right to propose amendments to the Constitution is really a species of the right of free speech
and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking
freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may
disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not
really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we
hate."5

Epilogue

By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three
are institutionalized legacies of the world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights
of our people to be used as their final weapons against political excesses, opportunism, inaction,
oppression and misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and
abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully
nurtured and zealously protected.

WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT
Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity,
but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining
order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen
Pedrosa from exercising their right to free speech in proposing amendments to the Constitution.

Melo and Mendoza, JJ., concur.

Separate Opinions
PUNO, J., concurring and dissenting:

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it
orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that
R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the
people's initiative to amend the Constitution. I likewise submit that the petition with respect to the
Pedrosas has no leg to stand on and should be dismissed. With due respect:

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate
amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735
should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for
the intent of the legislature is the law and the controlling factor in its interpretation.1 Stated otherwise,
intent is the essence of the law, the spirit which gives life to its enactment.2

Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative
to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the
history of the law which was a consolidation of House Bill No. 215053 and Senate Bill No. 17.4 Senate
Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the
Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact
Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local
Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose
amendments to the Constitution. In checkered contrast, House Bill No. 21505 5expressly included
people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in
his sponsorship remarks:6

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional
basis of the proposed measure.

1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced
by the 1935 Constitution saw the application of the principle of separation of powers.

2. While under the parliamentary system of the 1973 Constitution the principle
remained applicable, the 1981 amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.

Constitutional history then saw the shifting and sharing of legislative powers between
the Legislature and the Executive departments. Transcending changes in the
exercise of legislative power is the declaration in the Philippine Constitution that the
Philippines is a republican state where sovereignty resides in the people and all
sovereignty emanates from them.

3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress;
however, to institutionalize direct action of the people as exemplified in the 1986
Revolution, the Constitution recognizes the power of the people, through the system
of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have
plenary powers since reserve powers are given to the people expressly. Section 32
of the same Article mandates Congress to pass at the soonest possible time, a bill on
referendum and initiative, and to share its legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the
people the power to directly propose amendments to the Constitution through
initiative, upon petition of at least 12 percent of the total number of registered voters.

Stating that House Bill No. 21505 is the Committee's response to the duty imposed
on Congress to implement the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the system of initiative and
referendum under Philippine Law. He cited Section 99 of the Local Government
Code which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the Sangguniang
Barangay, all of which are variations of the power of initiative and referendum. He
added that the holding of barangay plebiscites and referendum are likewise provided
in Sections 100 and 101 of the same Code.

Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the
subject which he will later submit to the Secretary of the House be incorporated as
part of his sponsorship speech.

He then cited examples of initiative and referendum similar to those contained in the
instant Bill among which are the constitutions of states in the United States which
recognize the right of registered voters to initiate the enactment of any statute or to
project any existing law or parts thereof in a referendum. These states, he said, are
Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and
practically all other states.

Mr. Roco explained that in certain American states, the kind of laws to which initiative
and referendum apply is also without limitation, except for emergency measures,
which are likewise incorporated in House Bill No. 21505. He added that the
procedure provided by the Bill from the filing of the petition, the requirements of a
certain percentage of supporters to present a proposition, to the submission to
electors are substantially similar to the provisions in American laws. Although an
infant in Philippine political structure, the system of initiative and referendum, he said,
is a tried and tested system in other jurisdictions, and the Bill is patterned after
American experience.

He further explained that the bill has only 12 sections, and recalled that the
Constitutional Commissioners saw the system of the initiative and referendum as an
instrument which can be used should the legislature show itself to be indifferent to
the needs of the people. This is the reason, he claimed, why now is an opportune
time to pass the Bill even as he noted the felt necessity of the times to pass laws
which are necessary to safeguard individual rights and liberties.

At this juncture Mr. Roco explained the process of initiative and referendum as
advocated in House Bill No. 21505. He stated that:

1. Initiative means that the people, on their own political judgment, submit a Bill for
the consideration of the general electorate.
 2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the
Constitution once every five years; the initiative to amend statutes approved by
Congress; and the initiative to amend local ordinances.

3. The instant Bill gives a definite procedure and allows the Commission on Elections
(COMELEC) to define rules and regulations on the power of initiative.

4. Referendum means that the legislators seek the consent of the people on
measures that they have approved.

5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of
plebiscite by presenting a petition therefor, but under certain limitations, such as the
signing of said petition by at least 10 percent of the total of registered voters at which
every legislative district is represented by at least three percent of the registered
voters thereof. Within 30 days after receipt of the petition, the COMELEC shall
determine the sufficiency of the petition, publish the same, and set the date of the
referendum within 45 to 90-day period.

6. When the matter under referendum or initiative is approved by the required

number of votes, it shall become effective 15 days following the completion of its
publication in the Official Gazette.

In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot
ignore the people's call for initiative and referendum and urged the Body to approve
House Bill No. 21505.

At this juncture, Mr. Roco also requested that the prepared text of his speech
together with the footnotes be reproduced as part of the Congressional Records.

The same sentiment as to the bill's intent to implement people's initiative to amend the
Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador
Escudero III in his sponsorship remarks, viz:7

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ESCUDERO

Mr. Escudero first pointed out that the people have been clamoring for a truly popular
democracy ever since, especially in the so-called parliament of the streets. A
substantial segment of the population feels, he said, that the form of democracy is
there, but not the reality or substance of it because of the increasingly elitist
approach of their representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has provided a means
whereby the people can exercise the reserved power of initiative to propose
amendments to the Constitution, and requested that Sections 1 and 32, Article VI;
Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of
his sponsorship remarks.

Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to strong
 competition among cause-oriented and sectoral groups, he continued, it will hasten
the politization of the citizenry, aid the government in forming an enlightened public
opinion, and produce more responsive legislation. The passage of the Bill will also
give street parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.

Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so
that it can be initially used for the Agrarian Reform Law. He said that the passage of
House Bill No. 21505 will show that the Members can set aside their personal and
political consideration for the greater good of the people.

The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed
out in a Bicameral Conference Committee.8 In the meeting of the Committee on June 6,
1989,9 the members agreed that the two (2) bills should be consolidated and that the
consolidated version should include people's initiative to amend the Constitution as
contemplated by House Bill No. 21505. The transcript of the meeting states:

xxx xxx xxx

CHAIRMAN GONZALES. But at any rate, as I have said, because

this is new in our political system, the Senate decided on a more
cautious approach and limiting it only to the local government units
because even with that stage where . . . at least this has been quite
popular, ano? It has been attempted on a national basis. Alright.
There has not been a single attempt. Now, so, kami limitado doon.
And, second, we consider also that it is only fair that the local
legislative body should be given a chance to adopt the legislation bill
proposed, right? Iyong sinasabing indirect system of initiative. If after
all, the local legislative assembly or body is willing to adopt it in full
or in toto, there ought to be any reason for initiative, ano for initiative.
And, number 3, we feel that there should be some limitation on the
frequency with which it should be applied. Number 4, na the people,
thru initiative, cannot enact any ordinance that is beyond the scope of
authority of the local legislative body, otherwise, my God, mag-
aassume sila ng power that is broader and greater than the grant of
legislative power to the Sanggunians. And Number 5, because of
that, then a proposition which has been the result of a successful
initiative can only carry the force and effect of an ordinance and
therefore that should not deprive the court of its jurisdiction to declare
it null and void for want of authority. Ha, di ba? I mean it is beyond
powers of local government units to enact. Iyon ang main essence
namin, so we concentrated on that. And that is why . . . so ang sa
inyo naman includes iyon sa Constitution, amendment to the
Constitution eh . . . national laws. Sa amin, if you insist on that,
alright, although we feel na it will in effect become a dead statute.
Alright, and we can agree, we can agree. So ang mangyayari dito,
and magiging basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill or whether it is
the House bill. Logically it should be ours sapagkat una iyong sa amin
eh. It is one of the first bills approved by the Senate kaya ang number
niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you
insist, really iyong features ng national at saka constitutional, okay.
____ gagawin na natin na consolidation of both bills.
 HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill

No. so and so. 10

When the consolidated bill was presented to the House for approval, then Congressman
Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered
people's initiative to amend the Constitution. The record of the House Representative
states: 11

xxx xxx xxx

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines

Sur is recognized.

MR. ROCO. On the Conference Committee Report on the

disagreeing provisions between Senate Bill No. 21505 which refers to
the system providing for the initiative and referendum, fundamentally,
Mr. Speaker, we consolidated the Senate and the House versions, so
both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House
Representatives correctly provided for initiative and referendum on
the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the

Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few

questions?

THE SPEAKER PRO TEMPORE. The Gentlemen will please

proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the
two bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provide purely for local
initiative and referendum, whereas in the House version, we provided
purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding therefore, that the two

provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

 MR. ALBANO. So that we will now have a complete initiative and
referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance

with the provision of the Constitution whereby it mandates this
Congress to enact the enabling law, so that we shall have a system
which can be done every five years. Is it five years in the provision of
the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional

amendments in the 1987 Constitution, it is every five years.

MR. ALBANO. For every five years, Mr. Speaker?

MR. ROCO. Within five years, we cannot have multiple initiatives and
referenda.

MR. ALBANO. Therefore, basically, there was no substantial

difference between the two versions?

MR. ROCO. The gaps in our bill were filled by the Senate which, as I
said earlier, ironically was about local, provincial and municipal
legislation.

MR. ALBANO. And the two bills were consolidated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated
bill on Senate Bill No. 17 and House Bill No. 21505.

Is there any objection? (Silence. The Chair hears none; the motion is approved.

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to
amend the Constitution, it is our bounden duty to interpret the law as it was intended by the
legislature. We have ruled that once intent is ascertained, it must be enforced even if it may
not be consistent with the strict letter of the law and this ruling is as old as the mountain. We
have also held that where a law is susceptible of more than one interpretation, that
 interpretation which will most tend to effectuate the manifest intent of the legislature will be
adopted. 12

The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to
implement the people's initiative to amend the Constitution. To be sure, we need not torture the text
of said law to reach the conclusion that it implements people's initiative to amend the Constitution.
R.A. No. 6735 is replete with references to this prerogative of the people.

First, the policy statement declares:

Sec. 2. Statement of Policy. — The power of the people under a system of initiative
and referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (emphasis supplied)

Second, the law defines "initiative" as "the power of the people to propose amendments to the
constitution or to propose and enact legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on the Constitution is approved or
rejected by the people.

Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section
5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least threeper centum (3%) of the registered voters therein." It also
states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.

Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to
defeat its intent which it itself concedes is to implement people's initiative to propose amendments to
the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the
policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be
expected for laws are not always written in impeccable English. Rightly, the Constitution does not
require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose
Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to
refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished
Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately.
But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative
intention can be ascertained. The same is equally true with reference to awkward, slovenly, or
ungrammatical expressions, that is, such expressions and words will be construed as carrying the
meaning the legislature intended that they bear, although such a construction necessitates a
departure from the literal meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the
Constitution simply because it lacks a sub-title on the subject should be given the weight of helium.
Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and
sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are
entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14
All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or
spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly
disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the
law is its body but its spirit is its soul. 15

II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee
Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative
to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A.
No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to
promulgate such rules and regulations as may be necessary to carry out the purposes of this Act."
By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez
v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to
determine whether there is undue delegation of legislative power, viz:

xxx xxx xxx

Although Congress may delegate to another branch of the Government the power to
fill details in the execution, enforcement or administration of a law, it is essential, to
forestall a violation of the principle of separation of powers, that said law: (a) be
complete in itself — it must set forth therein the policy to be executed, carried out or
implemented by the delegate — and (b) to fix standard — the limits of which are
sufficiently determinate or determinable — to which the delegate must conform in the
performance of his functions. Indeed, without a statutory declaration of policy, which
is the essence of every law, and, without the aforementioned standard, there would
be no means to determine, with reasonable certainty, whether the delegate has
acted within or beyond the scope of his authority. Hence, he could thereby arrogate
upon himself the power, not only to make the law, but, also — and this is worse — to
unmake it, by adopting measures inconsistent with the end sought to be attained by
the Act of Congress, thus nullifying the principle of separation of powers and the
system of checks and balances, and, consequently, undermining the very foundation
of our republican system.

Section 68 of the Revised Administrative Code does not meet these well-settled
requirements for a valid delegation of the power to fix the details in the enforcement
of a law. It does not enunciate any policy to be carried out or implemented by the
President. Neither does it give a standard sufficiently precise to avoid the evil effects
above referred to.

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in
promulgating the law's implementing rules and regulations of the law. As aforestated, section 2
spells out the policy of the law; viz: "The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the
standards to canalize the delegated power to the COMELEC to promulgate rules and regulations
from overflowing. Thus, the law states the number of signatures necessary to start a people's
initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon
filing of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be
held, 22 when the amendment takes effect 23 and what matters may not be the subject of any
initiative. 24 By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out
the boundaries of the delegates' authority by defining the legislative policy and indicating the
circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is
to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In
enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law
implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will
show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the
people's initiative to amend the Constitution. The debates 26 in the Constitutional Commission make it
clear that the rules of procedure to enforce the people's initiative can be delegated, thus:

MR. ROMULO. Under Commissioner Davide's amendment, it is

possible for the legislature to set forth certain procedures to carry out
the initiative. . . ?

MR. DAVIDE. It can.

xxx xxx xxx

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

prevent the legislature from asking another body to set the
proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the

implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of
the requirement.

MR. DAVIDE. As long as it will not destroy the substantive right to

initiate. In other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the

procedures which I have discussed be legislated?

MR. DAVIDE. Yes.

In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed:
"In response to questions of Commissioner Romulo, Davide explained the extent of the
power of the legislature over the process: it could for instance, prescribe the 'proper form
before (the amendment) is submitted to the people,' it could authorize another body to check
the proper form. It could also authorize the COMELEC, for instance, to check the authenticity
of the signatures of petitioners. Davide concluded: 'As long as it will not destroy the
substantive right to initiate. In other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here.'" Quite clearly, the
prohibition against the legislature is to impair the substantive right of the people to initiate
amendments to the Constitution. It is not, however, prohibited from legislating the procedure
to enforce the people's right of initiative or to delegate it to another body like the COMELEC
with proper standard.

A survey of our case law will show that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of adequate legislative standard to guide their
promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly
pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare
the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United
States, 29 viz:

xxx xxx xxx

It is true that the Act does not in terms establish a particular standard to which orders
of the military commander are to conform, or require findings to be made as a
prerequisite to any order. But the Executive Order, the Proclamations and the statute
are not to be read in isolation from each other. They were parts of a single program
and must be judged as such. The Act of March 21, 1942, was an adoption by
Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order — the necessity
of protecting military resources in the designated areas against espionage and
sabotage.

In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20
look at the law cannot miss them. They were not written by our legislators in invisible ink.
The policy and standards can also be found in no less than section 2, Article XVII of the
Constitution on Amendments or Revisions. There is thus no reason to hold that the
standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as
adequate more general standards such as "simplicity and dignity," 30 "public
interest," 31 "public welfare," 32 "interest of law and order," 33 "justice and equity,"34 "adequate
and efficient instruction," 35 "public safety," 36 "public policy", 37 "greater national
interest", 38 "protect the local consumer by stabilizing and subsidizing domestic pump
rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due regard
and respect to the legislature, a co-equal and coordinate branch of government, should
counsel this Court to refrain from refusing to effectuate laws unless they are clearly
unconstitutional.

III

It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas.
The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at
bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to
Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas
did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by
the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition,
the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the
People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for
prohibition with prayer for temporary restraining order and/or writ of preliminary injunction.

The petition on its face states no cause of action against the Pedrosas. The only allegation against
the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the
signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an
organization was not impleaded as a respondent. Petitioners then prayed that we order the
Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the
Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a
signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift
the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions
for contempt against them without equivocation.
One need not draw a picture to impart the proposition that in soliciting signatures to start a people's
initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their
solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the
Constitution which provides that ". . . amendments to this Constitution may likewise be directly
proposed by the people through initiative. . ." This right springs from the principle proclaimed in
section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides
in the people and all government authority emanates from them." The Pedrosas are part of the
people and their voice is part of the voice of the people. They may constitute but a particle of our
sovereignty but no power can trivialize them for sovereignty is indivisible.

But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and
their organizations to effective and reasonable participation at all levels of social, political and
economic decision-making shall not be abridged. The State shall by law, facilitate the establishment
of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution
strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decision-making process of our people.
The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a
question mark on their right.

Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an
exercise of their freedom of speech and expression and their right to petition the government for
redress of grievances. We have memorialized this universal right in all our fundamental laws from
the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that
freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably,
freedom of speech enervates the essence of the democratic creed of think and let think. For this
reason, the Constitution encourages speech even if it protects the speechless.

It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to
amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC
Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To
be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the
predicate of progress and we should not fear change. Mankind has long recognized the truism that
the only constant in life is change and so should the majority.

IV

In a stream of cases, this Court has rhapsodized people power as expanded in the 1987
Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article
of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be
trusted to check excesses of government and that any effort to trivialize the effectiveness of people's
initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a
matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate
exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a
recall election in Caloocan City involving the mayor and ordered that he submits his right to continue
in office to the judgment of the tribunal of the people. Thus far, we have succeeded in transforming
people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage
people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to
amend the Constitution without setting back the flowering of people empowerment. More important,
the Court cannot seal the lips of people who are pro-change but not those who are anti-change
without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a
dialogue and not by a monologue for in a democracy nobody can claim any infallibility.
Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting:

The COMELEC should have dismissed, outrightly, the Delfin Petition.

It does seem to me that there is no real exigency on the part of the Court to engross, let alone to
commit, itself on all the issues raised and debated upon by the parties. What is essential at this time
would only be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus
S. Delfin in his capacity as a "founding member of the Movement for People's Initiative" and seeking
through a people initiative certain modifications on the 1987 Constitution, can properly be regarded
and given its due course. The Constitution, relative to any proposed amendment under this method,
is explicit. Section 2, Article XVII, thereof provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein. No amendment under
this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives,
the petition would rather have much of its burden passed on, in effect, to the COMELEC. The
petition would require COMELEC to schedule "signature gathering all over the country," to cause the
necessary publication of the petition "in newspapers of general and local circulation," and to instruct
"Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in
establishing signing stations at the time and on the dates designated for the purpose.

I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made
permanent under theponencia should be held to cover only the Delfin petition and must not be so
understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The
grant of such a right is clearly implicit in the constitutional mandate on people initiative.

The distinct greatness of a democratic society is that those who reign are the governed themselves.
The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has
taught us that the vitality of government lies not so much in the strength of those who lead as in the
consent of those who are led. The role of free speech is pivotal but it can only have its true meaning
if it comes with the correlative end of being heard.

Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the
Court, I most respectfully submit, to yet refrain from resolving the question of whether or not
Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on
right of the people to directly propose constitutional amendments. Any opinion or view formulated by
the Court at this point would at best be only a non-binding, albeitpossibly persuasive, obiter dictum.
I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued
by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for
constitutional amendments.

FRANCISCO, J., dissenting and concurring:

There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and
well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is
inadequate to cover the system of initiative on amendments to the Constitution.

To begin with, sovereignty under the constitution, resides in the people and all government authority
emanates from them.1 Unlike our previous constitutions, the present 1987 Constitution has given
more significance to this declaration of principle for the people are now vested with power not only to
propose, enact or reject any act or law passed by Congress or by the local legislative body, but to
propose amendments to the constitution as well.2 To implement these constitutional edicts, Congress
in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act".
This law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by
petitioners is based principally on the alleged lack of sub-title in the law on initiative to amend the
constitution and on their allegation that:

Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional amendments take effect upon
ratification not after publication.3

which allegation manifests petitioners' selective interpretation of the law, for under Section 9
of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph
(b) thereof is clear in providing that:

The proposition in an initiative on the constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every
part of the statute must be construed together with the other parts and kept subservient to the
general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be
interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a
whole.5

In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to
propose amendments to the constitution or to propose and enact legislations through an election
called for the purpose".6The same section, in enumerating the three systems of initiative, included an
"initiative on the constitution which refers to a petition proposing amendments to the
constitution"7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which
an initiative on the constitution is approved or rejected by the people" And as to the material
requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following:

A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of the registered voters as signatories, of which
every legislative district must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the constitution may be exercised only after
 five (5) years from the ratification of the 1987 Constitution and only once every five
years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by way of initiative.
"A legal provision", the Court has previously said, "must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or
having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by
the deliberations in Congress, thus:

. . . More significantly, in the course of the consideration of the Conference

Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill
No. 21505, it was noted:

MR. ROCO. On the Conference Committee Report on the

disagreeing provisions between Senate Bill No. 17 and the
consolidated House Bill No. 21505 which refers to the system
providing for the initiative and referendum, fundamentally, Mr.
Speaker, we consolidated the Senate and the House versions, so
both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House of
Representatives correctly provided for initiative and referendum an
the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO, Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the

Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few

questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.

THE SPEAKER PRO TEMPORE. The Gentleman will please

proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the
two bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provided purely for local
initiative and referendum, whereas in the House version, we provided
purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two

provisions were incorporated?
 MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and

referendum both in the constitutional amendment and national
legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance

with the provision of the Constitution to enact the enabling law, so
that we shall have a system which can be done every five years. Is it
five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional

amendments to the 1987 Constitution, it is every five years." (Id.
[Journal and Record of the House of Representatives], Vol. VIII, 8
June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279,
292-293 [1994]; emphasis supplied)

. . . The Senate version of the Bill may not have comprehended initiatives on the
Constitution. When consolidated, though, with the House version of the Bill and as
approved and enacted into law, the proposal included initiative on both the
Constitution and ordinary laws.9

Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other
construction as what petitioners foist upon the Court constitute a betrayal of the intent and
spirit behind the enactment.

At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any
action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996
[Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private
respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would
appear that proof of procurement of the required percentage of registered voters at the time the
petition for initiative is filed, is a jurisdictional requirement.

Thus:

A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of which every
legislative district must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the Constitution may be exercised only after
five (5) years from the ratification of the 1987 Constitution and only once every five
(5) years thereafter.

Here private respondents' petition is unaccompanied by the required signatures. This defect
notwithstanding, it is without prejudice to the refiling of their petition once compliance with the
required percentage is satisfactorily shown by private respondents. In the absence,
 therefore, of an appropriate petition before the Commission on Elections, any determination
of whether private respondents' proposal constitutes an amendment or revision is premature.

ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an
"inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I,
however, register my concurrence with the dismissal, in the meantime, of private respondents'
petition for initiative before public respondent Commission on Elections until the same be supported
by proof of strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting:

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the
"initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through
initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned."

(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of
initiative on amendments to the Constitution, is void."

I concur with the first item above. Until and unless an initiatory petition can show the required
number of signatures — in this case, 12% of all the registered voters in the Philippines with at least
3% in every legislative district — no public funds may be spent and no government resources may
be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any
petition absent such signatures. However, I dissent most respectfully from the majority's two other
rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be
amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by
all the voters of the country acting together. This decision will effectively but unnecessarily curtail,
nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the
majority holds the right hostage to congressional discretion on whether to pass a new law to
implement it, when there is already one existing at present. This right to amend through initiative, it
bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein. No amendment under
this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
With all due respect, I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him
of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby
preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the
Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed,
there is a right way to do the right thing at the right time and for the right reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec
Resolution 2300 Are Sufficient to Implement Constitutional Initiatives

While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by
the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution.1 I completely agree with the inspired and inspiring opinions of Mr.
Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on
initiative, sufficiently implements the right of the people to initiate amendments to the Constitution.
Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this
Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on
Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their
purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and
in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to
be rejected."

No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735
wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may
be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its
Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to
govern the conduct of initiative on the Constitution and initiative and referendum on national and
local laws," not by the incumbent Commission on Elections but by one then composed of Acting
Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores,
Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution
2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them,
other than an honest, sincere and exemplary effort to give life to a cherished right of our people.

The majority argues that while Resolution 2300 is valid in regard to national laws and local
legislations, it is void in reference to constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is the same law, RA 6735.

I respectfully submit that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient
authority to implement, effectuate and realize our people's power to amend the Constitution.

Petitioner Delfin and the Pedrosa

Spouses Should Not Be Muzzled

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this
Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from
exercising their right of initiative. In fact, I believe that such restraining order as against private
respondents should not have been issued, in the first place. While I agree that the Comelec should
be stopped from using public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from exercising their right of initiative.
The right to propose amendments to the Constitution is really a species of the right of free speech
and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking
freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may
disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not
really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we
hate."5

Epilogue

By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like
referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three
are institutionalized legacies of the world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights
of our people to be used as their final weapons against political excesses, opportunism, inaction,
oppression and misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and
abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully
nurtured and zealously protected.

WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT
Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity,
but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining
order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen
Pedrosa from exercising their right to free speech in proposing amendments to the Constitution.

Melo and Mendoza, JJ., concur.

Footnotes

1 Commissioner Blas Ople.

2 Commissioner Jose Suarez.

3 I Record of the Constitutional Commission, 371, 378.

4 Section 1, Article XV of the 1935 Constitution and Section 1(1), Article XVI of the
1973 Constitution.

5 Annex "A" of Petition, Rollo, 15.

6 Later identified as the People's Initiative for Reforms, Modernization and Action, or
PIRMA for brevity.

7 These sections read:

Sec. 4. The term of office of the Senators shall be six years and shall commence,
unless otherwise provided by law, at noon on the thirtieth day of June next following
their election.

No Senator shall serve for more than two consecutive terms. Voluntary renunciation
of the office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.
 xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected for a term of
three years which shall begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election.

No Member of the House of Representatives shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of his service for the full term for
which he was elected.

8 The section reads:

Sec. 4. The President and the Vice-President shall be elected by direct vote of the
people for a term of six years which shall begin at noon on the thirtieth day of June
next following the day of the election and shall end at noon of the same date six
years thereafter. The President shall not be eligible for any reelection. No person
who has succeeded as President and has served as such for more than four years
shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntary
renunciation of the office for any length or time shall not be considered as an
interruption in the continuity of the service for the full term for which he was elected.

9 The section reads:

Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.

10 Rollo, 19.

11 Annex "B" of Petition, Rollo, 25.

12 Order of 12 December 1996, Annex "B-1" of Petition, Rollo, 27.

13 Id.

14 Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v. COMELEC, 73 SCRA

333 [1976].

15 Rollo, 68.

16 Rollo, 100.

17 Rollo, 130.

18 A Member of the 1986 Constitutional Commission.

19 Section 26, Article II, Constitution.

20 Citing Commissioner Ople of the Constitutional Commission, I Record of the

Constitutional Commission, 405.

21 Rollo, 239.

22 Rollo, 304.

23 Rollo, 568.

24 These were submitted on the following dates:

(a) Private respondent Delfin — 31 January 1997 (Rollo, 429);

(b) Private respondents Alberto and Carmen Pedrosa — 10 February

1997 (Id., 446);

(c) Petitioners — 12 February 1997 (Id., 585);

(d) IBP — 12 February 1997 (Id., 476);

(e) Senator Roco — 12 February 1997 (Id., 606);

(f) DIK and MABINI — 12 February 1997 (Id., 465);

(g) COMELEC — 12 February 1997 (Id., 489);

(h) LABAN — 13 February 1997 (Id., 553).

25 Rollo, 594.

26 Annex "D" of Roco's Motion for Intervention in this case, Rollo, 184.

27 Rollo, 28.

28 232 SCRA 110, 134 [1994].

29 II The Constitution of the Republic of the Philippines, A Commentary 571 [1988].

30 I Record of the Constitutional Commission 370-371.

31 Id., 371.

32 Id., 386.

33 Id., 391-392. (Emphasis supplied).

34 Id., 386.
35 Id., 392.

36 Id., 398-399.

37 Id., 399. Emphasis supplied.

38 Id., 402-403.

39 Id., 401-402.

40 Id., 410.

41 Id., 412.

42 II Record of the Constitutional Commission 559-560.

43 The Congress originally appeared as The National Assembly. The change came
about as a logical consequence of the amended Committee Report No. 22 of the
Committee on Legislative which changed The National Assembly to "The Congress
of the Philippines" in view of the approval of the amendment to adopt the bicameral
system (II Record of the Constitutional Commission 102-105). The proposed new
Article on the Legislative Department was, after various amendments approved on
Second and Third Readings on 9 October 1986 (Id., 702-703)

44 V Record of the Constitutional Commission 806.

45 See footnote No. 42.

46 As Stated by Commissioner Bernas in his interpellation of Commissioner Suarez,

footnote 28.

47 Entitled "Initiative and Referendum Act of 1987," introduced by then

Congressmen Raul Roco, Raul del Mar and Narciso Monfort.

48 Entitled "An Act Implementing the Constitutional Provisions on Initiative and

Referendum and for Other Purposes," introduced by Congressmen Salvador
Escudero.

49 Entitled "An Act Providing for a System of Initiative and Referendum, and the
Exceptions Therefrom, Whereby People in Local Government Units Can Directly
Propose and Enact Resolutions and Ordinances or Approve or Reject Any Ordinance
or Resolution Passed By the Local Legislative Body," introduced by Senators
Gonzales, Romulo, Pimentel, Jr., and Lina, Jr.

50 IV Record of the Senate, No. 143, pp. 1509-1510.

51 VIII Journal and Record of the House of Representatives, 957-961.

52 That section reads:

Sec. 1. Statement of Policy. The power of the people under a system of initiative and
referendum to directly propose and enact resolutions and ordinances or approve or
reject, in whole or in part, any ordinance or resolution passed by any local legislative
body upon compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed.

53 It must be pointed out that Senate Bill No. 17 and House Bill No. 21505, as
approved on Third Reading, did not contain any subtitles.

54 If some confusion attended the preparation of the subtitles resulting in the leaving
out of the more important and paramount system of initiative on amendments to the
Constitution, it was because there was in the Bicameral Conference Committee an
initial agreement for the Senate panel to draft that portion on local initiative and for
the House of Representatives panel to draft that portion covering national initiative
and initiative on the Constitution; eventually, however, the Members thereof agreed
to leave the drafting of the consolidated bill to their staff. Thus:

CHAIRMAN GONZALES.

. . . All right, and we can agree, we can agree. So ang mangyayari dito, ang magiging
basic nito, let us not discuss anymore kung alin ang magiging basic bill, ano, whether
it is the Senate Bill or whether it is the House Bill. Logically it should be ours
sapagkat una iyong sa amin, eh. It is one of the first bills approved by the Senate
kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pag-usapan. Now, if
you insist, really iyong features ng national at saka constitutional, okay. Pero
gagawin na nating consolidation of both bills. (TSN, proceedings of the Bicameral
Conference Committee on 6 June 1989 submitted by Nora, R, pp. 1-4 — 1-5).

xxx xxx xxx

HON. ROCO. So how do we proceed from this? The staff will consolidate.

HON. GONZALES. Gumawa lang ng isang draft. Submit it to the Chairman, kami na
ang bahalang magconsult sa aming mga members na kung okay,

HON. ROCO. Within today?

HON. GONZALES. Within today and early tomorrow. Hanggang Huwebes lang tayo,
eh.

HON. AQUINO. Kinakailangang palusutin natin ito. Kung mabigyan tayo ng kopya
bukas and you are not objecting naman kayo naman ganoon din.

HON. ROCO. Editing na lang because on a physical consolidation nga ito, eh. Yung
mga provisions naman namin wala sa inyo. (TSN, proceedings of Bicameral
Conference Committee of 6 June 1989, submitted by E.S. Bongon, pp. III-4 — III-5).

55 Sec. 5(a & c), Sec. 8, Section 9(a).

56 Sections 13, 14, 15 and 16.

57 It would thus appear that the Senate's "cautious approach" in the implementation
of the system of initiative as a mode of proposing amendments to the Constitution, as
expressed by Senator Gonzales in the course of his sponsorship of Senate Bill No.
17 in the Bicameral Conference Committee meeting and in his sponsorship of the
Committee's Report, might have insidiously haunted the preparation of the
consolidated version of Senate Bill No. 17 and House Bill No. 21505. In the first he
said:

Senate Bill No. 17 recognizes the initiatives and referendum are recent
innovations in our political system. And recognizing that, it has adopted a
cautious approach by: first, allowing them only when the local legislative body
had refused to act; second, not more frequently than once a year; and, third,
limiting them to the national level. (I Record of the Senate, No. 33, p. 871).

xxx xxx xxx

First, as I have said Mr. President, and I am saying for the nth time, that we
are introducing a novel and new system in politics. We have to adopt first
a cautious approach. We feel it is prudent and wise at this point in time, to
limit those powers that may be the subject of initiatives and referendum to
those exercisable or within the authority of the local government units. (Id., p.
880).

In the second he stated:

But at any rate, as I have said, because this is new in our political system,
the Senate decided on a more cautious approach and limiting it only to the
local general units. (TSN of the proceedings of the Bicameral Conference
Committee on 6 June 1989, submitted by stenographer Nora R, pp. 1-2 to 1-
3).

In the last he declared:

The initiatives and referendum are new tools of democracy; therefore, we have
decided to be cautious in our approach. Hence, 1) we limited initiative and
referendum to the local government units; 2) that initiative can only be exercised if
the local legislative cannot be exercised more frequently that once every year. (IV
Records of the Senate, No. 143, pp. 15-9-1510).

58 Section 20, RA. No. 6735.

59 People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A. CRUZ, Philippine Political

Law 86 [1996] (hereafter CRUZ).

60 People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra, 87.

61 Pelaez v. Auditor General, 122 Phil. 965, 974 [1965].

62 Edu v. Ericta, 35 SCRA 481,497 [1970].

63 Sec. 7, COMELEC Resolution No. 2300.

64 Sec. 28, id.

65 Sec. 29, id.

66 Sec. 30, id.

PUNO, J., concurring and dissenting::

1 Agpalo, Statutory Construction, 1986 ed., p. 38, citing, inter alia, US v. Tamparong
31 Phil. 321; Hernani v. Export Control Committee, 100 Phil. 973; People v.
Purisima, 86 SCRA 542.

2 Ibid, citing Torres v. Limjap, 56 Phil. 141.

3 Prepared and sponsored by the House Committee on Suffrage and Electoral

Reforms on the basis of H.B. No. 497 introduced by Congressmen Raul Roco, Raul
del Mar and Narciso Monfort and H.B. No. 988 introduced by Congressman Salvador
Escudero.

4 Introduced by Senators Neptali Gonzales, Alberto Romulo, Aquilino Pimentel, Jr.,

and Jose Lina, Jr.

5 It was entitled "An Act Providing a System of Initiative and Referendum and
Appropriating Funds therefor.

6 Journal No. 85, February 14, 1989, p. 121.

7 Ibid.

8 The Senate Committee was chaired by Senator Neptali Gonzales with Senators
Agapito Aquino and John Osmena as members. The House Committee was chaired
by Congressman Magdaleno M. Palacol with Congressmen Raul Roco, Salvador H.
Escudero III and Joaquin Chipeco, Jr., as members.

9 Held at Constancia Room, Ciudad Fernandina, Greenhills, San Juan, Metro

Manila.

10 See Compliance submitted by intervenor Roco dated January 28, 1997.

11 Record No. 137, June 8, 1989, pp. 960-961.

12 Agpalo, op cit., p. 38 citing US v. Toribio, 15 Phil 7 (1910); US v. Navarro, 19 Phil

134 (1911).

13 Francisco, Statutory Construction, 3rd ed., (1968) pp. 145-146 citing Crawford,
Statutory Construction, pp. 337-338.

14 Black, Handbook on the Construction and Interpretation of the Laws (2nd ed), pp.
258-259. See also Commissioner of Custom v. Relunia, 105 Phil 875 (1959); People
v. Yabut, 58 Phil 499 (1933).
15 Alcantara, Statutes, 1990 ed., p. 26 citing Dwarris on Statutes, p. 237.

16 Entitled In re: Rules and Regulations Governing the Conduct of Initiative on the
Constitution, and Initiative and Referendum on National and Local Laws and
promulgated on January 16, 1991 by the COMELEC with Commissioner Haydee B.
Yorac as Acting Chairperson and Commissioners Alfredo E. Abueg, Jr., Leopoldo L.
Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao.

17 15 SCRA 569.

18 Sec. 5(b), R.A. No. 6735.

19 Sec. 5(b), R.A. No. 6735.

20 Sec. 7, R.A. No. 6735.

21 Sec. 9(b), R.A. No. 6735.

22 Sec. 8, R.A. No. 6735 in relation to Sec. 4, Art. XVII of the Constitution.

23 Sec. 9(b), R.A. No. 6735.

24 Sec. 10, R.A. No. 6735.

25 Cruz, Philippine Political Law, 1995 ed., p. 98.

26 See July 8, 1986 Debates of the Concom, p. 399.

27 1995 ed., p. 1207.

28 Cruz, op cit., p. 99.

29 320 US 99.

30 Balbuena v. Secretary of Education, 110 Phil 150 (1910).

31 People v. Rosenthal, 68 Phil 328 (1939).

32 Calalang v. Williams, 70 Phil 726 (1940).

33 Rubi v. Provincial Board of Mindoro, 39 Phil 669 (1919).

34 International Hardwood v. Pangil Federation of Labor, 70 Phil 602 (1940).

35 Phil. Association of Colleges and Universities v. Secretary of Education, 97 Phil

806 (1955).

36 Edu v. Ericta, 35 SCRA 481 (1990); Agustin v. Edu, 88 SCRA 195 (1979).

37 Pepsi Cola Bottling Co. vs. Municipality of Tanawan Leyte, 69 SCRA 460 (1976).
38 Maceda v. Macaraig, 197 SCRA 771 (1991).

39 Osmena v. Orbos, 220 SCRA 703 (1993).

40 Chiongbian v. Orbos, 245 SCRA 253 (1995).

41 Garcia v. COMELEC, et al., G.R. No. 111511, October 5, 1993.

42 Garcia, et al. v. COMELEC, et al., G.R. No. 111230, September 30, 1994.

43 Subic Bay Metropolitan Authority v. COMELEC, et al., G.R. No. 125416,

September 26, 1996.

44 Malonzo vs. COMELEC, et al., G.R. No. 127066, March 11, 1997.

FRANCISCO, J., concurring and dissenting:

1 Article II, Section 1, 1987 Constitution.

2 Article VI, Section 32, and Article XVII, Section 2, 1987 Constitution.

3 Petition, p. 5.

4 Paras v. Commission on Elections, G.R. No. 123619, December 4, 1996.

5 Tamayo v. Gsell, 35 Phil. 953, 980.

6 Section 3 (a), Republic Act No 6735.

7 Section 3(a) [a.1], Republic Act No 6735.

8 Uytengsu v. Republic, 95 Phil. 890, 893

9 Petition in Intervention filed by Sen. Raul Roco, pp. 15-16.

PANGANIBAN, J., concurring and dissenting:

1 Apart from its text on "national initiative" which could be used by analogy, RA 6735
contains sufficient provisions covering initiative on the Constitution, which are clear
enough and speak for themselves, like:

Sec. 2. Statement of Policy. — The power of the people under a system of initiative
and referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolution passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed.

Sec. 3. Definition of Terms. — For purposes of this Act, the following terms shall
mean:
 (a) "Initiative" is the power of the people to propose amendments to
the Constitution or to propose and enact legislation's through an
election called for the purpose.

There are three (3) systems of initiative, namely:

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

amendments to the Constitution;

a.2 Initiative on statutes which refers to a petition proposing to enact

a national legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to

enact a regional, provincial, city, municipal, or barangay law,
resolution or ordinance.

xxx xxx xxx

(e) "Plebiscite" is the electoral process by which an initiative on the

Constitution is approved or rejected by the people

(f) "Petition" is the written instrument containing the proposition and

the required number of signatories. It shall be in a form to be
determined by and submitted to the Commission on Elections,
hereinafter referred to as the Commission

xxx xxx xxx

Sec. 5 Requirements. — . . .

(b) A petition for an initiative on the 1987 Constitution must have at

least twelve per centum (12 %) of the total number of registered
voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered
voters therein. Initiative on the Constitution may be exercised only
after five (5) years from the ratification of the 1987 Constitution and
only once every five (5) years thereafter.

Sec. 9. Effectivity of Initiative or Referendum Proposition. —

xxx xxx xxx

(b) The proposition in an initiative on the Constitution approved by a

majority of the votes cast in the plebiscite shall become effective as to
the day of the plebiscite.

xxx xxx xxx

(c) The petition shall state the following:

 c.1 contents or text of the proposed law sought to be
enacted, approved or rejected, amended or repealed,
as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided herein;

c.5 signatures of the petitioners or registered voters;

and

c.6 an abstract or summary proposition in not more

than one hundred (100) words which shall be legibly
written or printed at the top of every page of the
petition.

xxx xxx xxx

Sec. 19. Applicability of the Omnibus Election Code. — The Omnibus Election Code
and other election laws, not inconsistent with the provisions of this Act, shall apply to
all initiatives and referenda.

Sec. 20. Rules and Regulations. — The Commission is hereby empowered to

promulgate such rules and regulations as may be necessary to carry out the
purposes of this Act. (Emphasis supplied)

2 G.R. No. 125416, September 26, 1996.

3 237 SCRA 279, 282, September 30, 1994.

4 Sec. 20, R.A. 6735.

5 United States vs. Rosika Schwimmer, 279 U.S. 644, 655 (1929).
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.

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. 8This is especially true in cases where the power of the Presidency to initiate the of normally exercised
by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the constitution
resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular National
Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly
(Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to
constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed
amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of
the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed
as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section
2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be
heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the
concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only of treaties and statutes, but also
of the 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
Cases12 involving 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.17 Such being the case, approval of the President of any proposed amendment is a
misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary
cases of legislation. The President has nothing to do with proposition or adoption of amendments to
the Constitution. 19

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.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the
Philippines, a republican and unitary state, sovereignty "resides in the people and all government
authority emanates from them .30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of
individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It means that the
constitutional legislator, namely the people, is sovereign 32 In consequence, the people may thus write into the Constitution their convictions
on any subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment."34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one generation
should be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting decision of the people
when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their

sovereign power as constitutional legislator. The proposed amendments, as earlier discussed,
proceed not from the thinking of a single man. Rather, they are the collated thoughts of the
sovereign will reduced only into enabling forms by the authority who can presently exercise the
powers of the government. In equal vein, the submission of those proposed amendments and the
question of martial law in a referendum-plebiscite expresses but the option of the people themselves
implemented only by the authority of the President. Indeed, it may well be said that the amending
process is a sovereign act, although the authority to initiate the same and the procedure to be
followed reside somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to
be continued? - is a referendum question, wherein the 15-year olds may participate. This was
prompted by the desire of the Government to reach the larger mas of the people so that their true
pulse may be felt to guide the President in pursuing his program for a New Order. For the
succeeding question on the proposed amendments, only those of voting age of 18 years may
participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of those 18 years old and above
which will have valid bearing on the results. The fact that the voting populace are simultaneously
asked to answer the referendum question and the plebiscite question does not infirm the
referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue,
which is of current one and submitting to them for ratification of proposed constitutional
amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily
dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of
voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen
years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under
eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in
another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the
age groupings, i.e., ballots contained in each of the two boxes.38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely

consultative in character. It is simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of which is derived from or within the
totality of the executive power of the President.39 It is participated in by all citizens from the age of
fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex- convicts .40 A
"plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at least six
months preceding the election Literacy, property or any other substantive requirement is not
imposed. It is generally associated with the amending process of the Constitution, more particularly,
the ratification aspect.

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"

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,5 manifest 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."24Further, 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. 52 This 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. Comelec16, 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 cases19 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, 20the 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
Commissioner21, "(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 cases22, "(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 Tolentino43 (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:

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.

Footnotes

1 Sec. 3, PD 991, September 2, 1976.

2 SEC. 4 Who shall participate.-Every Filipino citizen, literate or not, fifteen years of
age or over who has resided in the barangay for at least six months shall participate
in the consultation in his barangay. Provided, however, That any person who may not
be able to participate in the consultations of his barangay may do so in any barangay
member shall participate in more than one barangay consultation.

3 SEC. 15. The 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
thereof."

4 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960).

5 Section 18.

6 Section 5.
7 Tan v. Macapagal, L-34161, Feb. 29, 1972, 43 SCRA 677, Fernando, J., ponente.
See also Standing to Secure Judicial Review, Jaffe, 74 Harvard Law Review 1265
(May 1961).

8 Concurring and dissenting opinion of Justice Fernando in the Plebiscite Cases

(Planas v. Comelec, 49 SCRA 105). See Martial Law and the New Society in the
Philippines, Supreme Court, 1976, at 152.

9 Orfield Amending the Federal Constitution, 111.

10 Separate Opinion of Justice Concepcion in the Ratification Casts v. the Executive

Secretary 50 SCRA 30), Martial Law and the New Society in the Philippines, 1976,
Supreme Court, 210-224, quoting Tanada v. Cuenco, 103 Phil. 1051.

11 See Martial Law and the New Society in the Philippines, Supreme Court, 1976, at
121.

12 Idem, at 210.

13 The view of the Chief Justice was shared by Justices Makalintal (later Chief
Justice), Zaldivar, Castro (present Chief Justice), Fernando, and Teehankee. Justice
Barredo qualified his vote, stating that "inasmuch as it is claimed that there has been
approval by the people, the Court may inquire into the question of whether or not
there has actually been such an approval, and, in the affirmative, the Court should
keep its hands-off out of respect to the people's will, but, in the negative, the Court
may determine from both factual and legal angles whether or not Article XV of the
1935 Constitution has been complied with." Justices Makasiar, Antonio and Esguerra
hold that the issue is political and "beyond the ambit of judicial inquiry."

14 62 SCRA 275, Referendum Case, Martial Law and the New Society in the
Philippines, Supreme Court, 1976, at 1071.

15 Idem, at 10791081.

16 In the United States, all amendments to the Federal constitution, except the
Twenty-first Amendment, had been proposed by the U.S. Congress, Modern
Constitutional Law, Antieau Vol. 2,1969 ed., at 482.

17 The Amending of the Federal Constitution by Orfield 1942, 48-53; 103-105.

18 Black's Constitutional Law, Hornkbook series, at 42.

19 Hollingsworth v. Virginia, 3 Dall 378.

20 There are 3 types of crisis in the life of a democratic nation. First is particularly a
war to repel invasions, when a state must convert its peacetime political and social
order into a wartime fighting machine and overmatch the skill and efficiency of the
enemy. Second, is rebellion, when the authority of a constitutional government is
resisted openly by a large numbers of its citizens who are engaged in violent
insurrection against the enforcement of its laws or are bent on capturing it illegally or
even destroying it altogether. Third is economic depression-a crisis greater than war.
Rossiter, Constitutional Dictatorship, at 6.

21 Constitutional Dictatorship by Clinton Rossiter, 288-290.

22 Corwin, The President Office and Powers, at 371.

23 See Separate Opinion of the Chief Justice (the Justice Castro in the Referendum
Case (Aquino v. Comelec), at p. 1084, Martial Law and the New Society in the
Philippines, Supreme Court, 1976.

26 Orfield, Amending the Federal Constitution, at 55.

27 Daily Express, Sept. 27,1976; Times Journal, Sept. 17, 1976.

28 Sunday Express, September 23, 1976.

29 Daily Express, September 23, 1976.

30 Section 1, Article II, 1973 Constitution.

31 See Orfield, Amending the Federal Constitution, 140-143. The first meaning
includes all persons. living within the state during the whole time of the existence of
the state; the second, the sum of all individuals as an organized group living within
the state at the same time: and the third, the organized group of individuals living the
state with the exception of the government.

32 Friedrich, The Philosophy of Law in Historical Perspective, 1963, at 221.

33 Orfield Amending the Federal Constitution, at 105.

34 Abrams v. United States, 250 U.S. 616, 630.

35 Op Cit., at 221.

39 Separate opinion of Justice Palma in the Referendum Case (Aquino v.

COMELEC), at 1135, Martial Law and the New Society in the Philippines, 1976,
Supreme Court.

40 Separate opinion of Justices Makalintal and Castro in the Ratification Case

(Javellana v. The Executive Secretary, 50 SCRA 30), at 292-293, Martial Law and
the New Society in the Philippines

41 Sec. 1, Article VI, 1973 Constitution.

42 Daily Express, September 29, 1976.

43 See Times Journal, September 30, 1976.

44 Times journal, October 2, 1976.

45 See Martial Law and the New Society, 1976, Supreme Court, at 1082-83.

46 307 U.S. 433, see Cases in Constitutional Law, 3rd ed., Cushman and Cushman,
12-13.

47 Dillon v. Gloss, 256 U.S. 368.

48 Willoughby on the Constitution of the Untied States, Vol. 1,595-96.

L-35925, January 22, 1973, 49 SCRA 105. The other cases disposed of by the Court
are not referred to.

2 L-36142, March 31, 1973, 50 SCRA 30. Again, no reference is made to the other
petitions raising the same question as to te validity of Proclamation No. 1102
announcing the ratification of the Constitution proposed by the Constitutional
Convention.

3 L-35546, September 17, 1974, 59 SCRA 183. It must be noted that there were
other petitions decided likewise seeking the nullification of Proclamation No. 1081
declaring martial law.

4 L-4004, January 31, 1975, 62 SCRA 275. This decision affirmed the power of the
incumbent President to issue decrees having the force and effect of law. There was
in the main opinion in this case, penned by Justice Makasiar, an explicit recognition
that the incumbent President possesses legislative competence so that during the
period of Martial Law he could assure "the security and preservation of the Republic,
... the defense of the political and social liberties of the people and... 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 ..." (At 298) Justices Antonio, Esguerra, Fernandez, Munoz Palma and
Aquino concurred, although in a separate opinion, Justice Munoz Palma qualified it
by saying that the grant of legislative power "is necessarily 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." (At 347) There was
likewise a concurring opinion by the then Justice, now Chief Justice Justice
Makalintal and Justices Barredo, Antonio, Esguerra and Fernandez concurred with
this opinion. In a concurring and dissenting opinion, Justice Teehankee would
confine "his legislative and appropriation powers under martial law ... to the law of
necessity of preservation of the state which gave rise to its proclamation (including
appropriations for operations of the government and its agencies and
instrumentalities)." (At 316-317) The writer of this opinion had his own concurrence
and predicated his vote without an expression of his views as to the grant of
legislative power to the President. "

5 L-37364, May 9,1975, 63 SCRA 546. The Court ruled in this case that military
commissions may try civilians for certain specified offenses according to applicable
presidential decrees.

6 SCRA 183, 281-309.

7 Ibid, 301.

8 Ex parte Milligan is reported in 4 Wall. 2 (1966). It was likewise noted that Story,
the first eminent commentator in American constitutional law made no reference to
martial law. Cooley's work, now in its 8th edition, is entitled Constitutional Limitations
while that of Watson bears the title of Constitution of the United States. At 302

9 Ibid. Sterling is found in 287 US 378 (1932) and Duncan in 327 US 304 (1946).
Among the casebooks on constitutional law referred to are those by Dodd (1949),
Dowling (1950), Sholley (1951), Frank (1932), Freund and Associates (1954), Barrett
and Associates (1963), Kauper (1966), Lockhart and Associates (1970).

10 Ibid. It may be observed parenthetically that when I collaborated with Senator

Lorenzo M. Tanada in the Constitution of the Philippines Annotated published almost
thirty Nears ago in 1947 (at 588-589) with two later editions that came out in 1949 (at
694-695) and 1993 (at 1013-1014), it was Willoughby's view that was cited.

11 Ibid. 302-303. This was the formulation of Burdick in his The Law of the American
Constitution, 261 (1922).

12 Ibid. 303.

13 Ibid. The citation is from Willoughby on the Constitution of the United States, 2nd
ed. 1591 (1929).

14 Ibid. The excerpt is from Williams on Constitutional Law, 449 (1936). It is to be

made clear that in our Constitution, it is only the privilege of the writ, not the writ itself
that is suspended.

15 Ibid. :30:3-304. The quotation is from volume 2 of the treatise of Schwartz on the
American Constitution, entitled The Powers of Government 244 (1963) that the
citation came from.

16 Ibid. The reference is to Dicey on the Law of the Constitution, 287-288 (1962).

17 327 US 304, 322.

18 Cf. Aquino v. Commission on Elections, 62 SCRA 275.

19 Ibid, 305. The citation from Rossiter is from the first chapter of his work on
Constitutional Dictatorship. 9 (1948).

20 Ibid. 306.

21 SCRA 275, 298. Justice Makasiar cited pages 7 and 303 of Rossiter's
Constitutional Dictatorship.

22 The extensive citation in the opinion of Justice martin is found in Chapter XIX of
Rossiter's opus entitled Constitutional Dictatorship: The Forms, the Dangers, the
Criteria, the Future. that is the last chapter of his work, after a rather exhaustive
discussion of what are referred to by him as Constitutional Dictatorship in Germany
(Chapters III to V), Crisis Government in the French Republic (Chapters VI to IX),
Crisis Government in the United States (chapters XIV to XVII).

23 Ibid. 294.

24 Imelda Romualdez Marcos, The Filipino Between Two Worlds, Philippines Daily
Express lo, October 9,1976.

25 Ibid.

26 Corwin, The President Office and Powers, 4th rev. ed., 139-140 (1957).

27 According to Art XVII, Sec. 15 of the present Constitution: The interim National
upon special call by the interim Prime Minister, a majority vote of all its Members,
propose to amendments to this Constitution. Such amendments shall take effect
when ratified in accordance with Article Sixteen hereof."

28 He was assisted by Assistant Solicitor General Hugo E. Gutierrez Jr. and Trial
Attorney Nannette R. de Castro.

29 Malcolm and Laurel, Philippine Constitutional Law, 3rd ed., 20-21 (1936).

30 Malcolm and Laurel, Cases on Constitutional Law (1936).

31 Ibid. Ellingham v. Dye is reported in 99 NE 1 (1912).

32 Philippine Political Law, llth ed. 63 (1962). It is precisely Ellingham v. Dye that
was cited.

33 Justice Makasiar referred to Article XVII, Sec. 3, par. 2 of the present Constitution.
The present Chief Justice would include paragraph 1 to the above. Vide in. 4.

34 L-34150, October 16,1951, 41 SCRA 702.

35 According to Article 11, Section 1 of the present Constitution: The Philippines is a

republican state. Sovereignty resides in the people and all government authority
emanates from them."

36 Cf. Crammer v. Thorson 68 NE 202 (1896): Edwards v. Lesueur 83 SW 1130

(1896); People v. Mills, 70 P. 322 (1902); Treadgill v. Cross, 109 P 558 (1910); Scott
v. James, 76 SE 283 (1912); Weinland v. Fulton 121 NE 816 (1918); Gray v. Mass,
156 So. 262 (1934); Gray v. Winthrop, 156 So. 270 (1934); State v. Burns, 172 SW
259 (1943), Hillman v. Stockett 39 A2 803 (1944).

37 L-19313, January 19,1962,4 SCRA 1.

38 Ibid, 17-18.

39 L-21897, October 22, 1964, 9 SCRA 230.

40 Ibid, 244.

41 50 SCRA 30, 310-333 (1973).

42 59 SCRA 275, 306-315 (1974).

43 Laski, Grammar of Politics, 4th ed., 34 (1937).

44 Corwin, The Higher Law Background of American Constitutional Law, Selected

Essays on Constitutional Law 3 (1938).

45 Lerner, Ideas are Weapons, 470 (1939).

46 Bryn-Jones, Toward a Democratic New Order 23 (1945).

47 McIver, The Web of Government 84 (1947).

48 L-28916, November 9, 1967, 21 SCRA 774.

49 L-23415, October 16, 1971, 41 SCRA 702.

50 L-35925, January 22, 1973, 49 SCRA 105.

51 L-36142, March 31, 1973, 50 SCRA 30. If I read correctly the concurring opinion
of the then Chief Justice Makalintal and the now Chief Justice Castro, then an
Associate Justice, where the question raised concerns the adoption and enforcement
of a new Constitution, then it may be looked upon as political.

52 78 Phil. 1 (1947). To be more precise, there were only five Justices, headed by
Justice Tuason, with the then Chief Justice Moran and the then Justices Paras, later
himself a Chief Justice, Hilado, Pablo and Hontiveros, who were of that persuasion.
The other two votes necessary for a majority for dismissing the prohibition petition
were supplied by Justice, also later a Chief Justice, Bengzon and Justice Padilla.

53 307 U.S. 433. In the concurring opinion of Justice Black, with Justices Roberts,
Frankfurther and Douglas in agreement, he made the categorial statement that such
process "is 'political' in its entirety, from submission until an amendment becomes
part of the Constitution, and is not subject to judicial guidance, control or interference
at any point." At 459.

54 Cf. Hatcher v. Meredith, 173 SW 2d 665 (1943); In re Application of Borg, 35 A2d

220 (1944); Renck v. Superior Court of Maricopa County, 187 P2d 656 (1947); In re
Opinion of Justices, 47 SO2d 643 (1950); Funk v. Fielder, 243 SW2d 474 (1951);
Baum v. Newbry 267 P2d 220 (1954); Boe v. Foss, 77 NW2d 1 (1956); Goldner v,
Adams, 167 SO2d 575 (1964); Hamilton v. City of Shreveport, 174 SO2d 529 (1965).

55 Laurel, S., ed., VII Proceedings of the Philippine Constitutional Convention (1934-
1935), Appendix L, 800.

56 SCRA 275, 306-315.

1 Article XV, section 1.

2 Article XVI, section 1, paragraphs (1) and (2).

3 Article XVII. section 3 (1).

4 Article XVII, section 15.

5 P.D. No. 991 dated Sept. 2, 1976, as amended by P.D. No. 1031 dated Sept. 22,
1976 and P.D. No. 1033 dated Sept. 22, 1976 "Stating the questions to be submitted
to te people i the referendum-plebiscite on October 16, 1976".

6 Art. XV, sec. 1, 1935 Constitution (see Art. XVI, secs. 1 and 2, 1973 Constitution).

7 Resolution on motion for reconsideration in Tolentino vs. Comelec dated Nov. 4,

1971, at page 3.

8 Idem, at page 4.

9 Idem, at page 4

10 Idem, at page 4.

11 Marshall, C.J. in Marburg vs. Madison, 1 Cranch 137(1803).

12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 81

13 Idem, pp. 87-88.

14 Javellana vs' Exec. Secretary, 50 SCRA 30 (1973).

15 Majority opinion at p.20.

16 21 SCRA 774(1967)

17 Citing Sec.1,Art.VI,1935 Constitution

18 See sec.1,Art. VIII,1973 Constitution

19 Aquino vs. Comelec, 62 SCRA 275 (Jan. 31, 1975);see also Gonzales vs.
Comelec, L-40117, Feb. 22, 1975

20 Cooley, Constitutional Limitations, 8th Ed., Vol. 1, p. 224

21 63 Phil. 134(1936).

23 Sunday Express (and Times Journal) issues of August 29, 1976 reported that
"(A)s proposed by the sanggunian and barangay national executive committees, the
following questions will be submitted in the discussions and referendums:
1 Do you want martial law to be lifted?

2 Do you want to call the interim National Assembly?

3 If not, do you want to call a body with legislative powers?

4 Do you want such body to have full legislative powers?

5 If not, do you want such body to have limited legislative powers as may be
determined by the President in a presidential decree?

6 If you want to call a body with certain legislative powers, do you want to grant such
body authority to propose amendments to the Constitution to make it conform with
the aims to the New Society?

7 If you want to call the body referred to questions 4, 5, and 6, do you want the
members of such body elected by the people through the barangays in accordance
with an election code to be promulgated in a decree by the President?

"The barangay and sanggunian executive committees informed the President that it
was 'the thing of the barangays to undertake the referendum on an informal manner
and that they opted to devise their own ballots, tally sheets, and all other necessary
from.'

"As proposed, and approved by the President, the referendum will be done by secret
ballot, except in small barangays where the residents can be gathered in one
assembly to decide on the issues by roll call vote if desired by residents.

"The canvassing will be done by the barangay referendum committee."

24 "The other issue to be taken up in the public discussions is the question on

whether the interim national assembly should be convened or not.

"This question was asked in two previous referenda-in 1973 and 1975 - and was
rejected each time by the people

"The barangays, however, of feel it is time to again ask the people's opinion of this
matter." (Phil. Express issue of Aug. 30,1976).

25 Art. IX, see. 1, 1973 Constitution.

26 Cooleys Constitutional Limitations, 8th Ed. Vol. 2, p. 1349, citing Chief Justice
Davis in Gibson vs. Mason, 5 Nev. 293, 291 thus; "The maxim which lies at the
foundation of our government is that all political power originates with the people. But
since the organization of government it cannot be claimed that either the legislative,
executive, or judicial powers, either wholly or in part, can be exercised by them. By
the institution of government the people surrender the exercise of all these sovereign
functions of government to agents chosen by themselves, who at least theoretically
represent the supreme will of their constituents. Thus all power possessed by the
people themselves is given and centered in their chosen representatives
27 See fns. 8-10: note in parenthesis supplied.

28 Tolentino vs. Comelec, 41 SCRA 702, 725; emphasis supplied.

29 36 SCRA 228 234 (1970).

30 Resolution denying motion for reconsideration dated Nov. 4, 1971, at page 13.

31 Idem, at page 16 fn. 6.

32 Majority opinion, at page 19.

33 Idem, at page 20.

33* Rodriguez vs. Gella 92 Phil. 603 (1953); see also Araneta vs. Dinglasan, 84 Phil.
368 (1949).

34 Gonzales vs. Comelec, L-40117, Resolution of Feb. 22,1975.

35 In re Egan 8 Fed. Cas. 367, holding that "Martial law is neither more nor less than
the will of the general in command of the army- It overreaches and supersedes, all
civil law by the exercise of military power.." as cited in the Secretary of Justice's
outline of a study on the exercise of Legislative Power by the President under Martial
Law, dated Dec. 27, 1972, as reported in Lawyers' Journal, March 31, 1973 issue, p.
90.

36 Cooley's Constitutional Limitations. 8th Ed., Vol. 1, pp.128-129.

37 With the exception of the proposed amendments increasing the membership of

the House of Representatives from 120 to 180 and authorizing members of Congress
to become Con-Con delegates, which were widely publicized as a result of the court
proceedings and decision in Gonzales vs. Comelec, 21 SCRA 774.

38 "Perspectives and Dimensions of Constitutional Reforms" delivered as keynote

speech at the National Conference on Constitutional Amendments, July 27,1970.

39 Articles VIII, IX and X, 1973 Constitution.

40 U.P. Professor Perfecto V. Fernandez: Civil Liberties under Martial Law.

41 Louis H. Pollale The Constitution and the Supreme Court, Vol. 1, page 191.

42 Supra, fn. 16.

43 Supra, fn. 28.

44 Sec. Art. VIII, sec. 2 1935 Constitution; Art. X, sec. 5, 1973 Constitution

45 SCRA 30 (1973) and cases cited.

46 Now retired Justices J.B.L. Reyes and Calixto 0. Zaldivar.

47 SCRA at p. 733.

48 21 SCRA at pages 816-817, emphasis copied.

49 From Am. Law Review, 1889, p. 311, citing Ellingham vs. Dye 99 N.E. pp. 4,15;
emphasis copied.

50 21 SCRA at p. 817.

51 Phil. Daily Express issue of Oct. 11, 1976 reporting the Comelec's stand that
"Young voters, from age 15 to below 18 can vote not only on the question of martial
law but also on the question regarding the proposed constitutional amendments".

52 Phil. Daily Express issue of Oct. 3, 1976.

53 Times journal and Phil. Daily Express issues of Oct. 11, 1976.

54 In the Bulletin Today issue of October 2, 1976, the President is quoted as himself
abstaining from the debates: "I am trying to steer clear of the debates because it
involves martial law, and it involves, of course, me personally. So the less I say about
it, the better, I guess, from my point of view".

54* Pres. Marcos' address on observance of the first anniversary of the 1973
Constitution on Jan. 17, 1974; Phil. Labor Relations Journal, Vol. VII, Jan. 1974, p. 6.

55 The resolution gave the same permission to court personnel by a 9 to 1 vote with
Justice Makasiar and the writer presenting no objection in the case of personnel as
classified civil service employees, while Justice Munoz Palma maintained the same
negative vote.

1 Aquino, J. vs Ponce Enrile and other cases, 59 SCRA 183.

2 50 SCRA 30, 209 et seq.

1 Carl Brent Swisher. The Supreme Court in the Modern Role, 1958 ed., p. 173.

2 Melville Fuller Weston, Political questions, 38 Harv. L. Rev., 296, Italics supplied.

3 Tanada v. Cuenco, 103 Phil. 1051, 1057, citing in re McConoughy, 119 NW 408.
Italics supplied.

4 16 C.J.s. 413.

5 369 U.S. 186, 217.

6 307 U.S. 433.

7 78 Phil, 1 (1947).
8 21 SCRA 774.

9 Republic Act No. 413.

10 41 SCRA 702,

11 L-40004, January 3l, 1975. 62 SCRA 275.

12 Proclamation No. 1103, January 17,1973.

13 Section 1, Article II, Constitution.

14 Leibholz: Politics and Law, p. 24.

15 Todays Revolution: Democracy, Marcos, pp. 87-88.

16 Mabanag v. Lopez Vito, supra, at page 5, citing Green v. Weller, 32 Miss., 650;
note, 10 L.r.a., n.s., 150.

17 John P. wheeler, Jr., Changing the fundamental Law SALIENT ISSUES OF

CONSTITUTIONAL REVISION; 1961 ed.

18 Sinco. Philippine Political Law, 10th Ed. p. 48

19 T.S.N. of hearing, October 8,1976, pp. 8,11,12,15.

* p. 716, 1974 Ed., citing B. Schwartz, I The Powers of Government (1963) 10.

xxx xxx xxx

It is well that the powers of the people and their relations to organized society should
be understood. No heresy has ever been taught in this country so fraught with evil as
the doctrine that the people have a constitutional right to disregard the constitution,
and that they can set themselves above the instrumentalities appointed by the
constitution for the administration of law. It tends directly to the encouragement of
revolution and anarchy. It is incumbent upon all who influence and mold public
opinion to repudiate and discountenance so dangerous a doctrine before it bears
fruits destructive of republican institutions. It will be well if the people come to
understand the difference between natural and constitutional freedom. before license
becomes destructive of liberty ." (pp. 611-616)

4 Green castle Township v. Black, 5 Ind.,557, 56,5.

5 Oakley vs. Aspinwall, 3 N.Y., 547,568.

6 Resolution on Motion for Reconsideration, L-34150, November 4, 1971, per

Barredo, J., pp 19-20, Supreme Court Decisions, November 1971

6 Whenever in the judgment of the President (Prime Minister there exists a brave
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. (Taken from the Barangay
Ballot Form distributed by COMELEC for Referendum-Plebiscite, October 16, 1976)

7 Speech upon conferment of the Doctor of Laws, Honoris Causa, by the Manila
University, the Lawyers' Journal, June 15, 1936, italics Ours.

8 The Lawyers' Journal, March 15, 1936,

1 Tagada & by Macapagal v. Cuenco, et al.. 103 Phil. 1051

2 L-28196. Nov. 9,1967; 21 SCRA 774.

3 L-34150, Oct. 16, 1971, 41 SCRA 702.

4 Article XVII, Section 1, Constitution.

5 Aquino vs.. Comelec, L-40004, Jan. 31, 1975, 62 SCRA 275, 302.

9 Idem, at page 4.

10 Idem, at page 4.

11 Marshall, C.J. in Marburg vs. Madison, I Cranch 137 (1803).

12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 81.

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,

(Sgd.) DIOSDADO P.
MACAPAGAL
DIOSDADO P.
MACAPAGAL
President

On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will
hold the plebiscite on condition that:
 (a) The Constitutional Convention will undertake the printing of separate official
ballots, election returns and tally sheets for the use of said plebiscite at its expense;

(b) The Constitutional Convention will adopt its own security measures for the
printing and shipment of said ballots and election forms; and

(c) Said official ballots and election forms will be delivered to the Commission in time
so that they could be distributed at the same time that the Commission will distribute
its official and sample ballots to be used in the elections on November 8, 1971.

What happened afterwards may best be stated by quoting from intervenors' Governors' statement of
the genesis of the above proposal:

The President of the Convention also issued an order forming an Ad Hoc Committee
to implement the Resolution.

This Committee issued implementing guidelines which were approved by the

President who then transmitted them to the Commission on Elections.

The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7,1971, enclosing copies
of the order, resolution and letters of transmittal above referred to (Copy of the report
is hereto attached as Annex 8-Memorandum).

RECESS RESOLUTION

In its plenary session in the evening of October 7, 1971, the Convention approved a
resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a
recess of the Convention from November 1, 1971 to November 9, 1971 to permit the
delegates to campaign for the ratification of Organic Resolution No. 1. (Copies of the
resolution and the transcript of debate thereon are hereto attached as Annexes 9 and
9-A Memorandum, respectively).

RESOLUTION CONFIRMING IMPLEMENTATION

On October 12, 1971, the Convention passed Resolution No. 24 submitted by

Delegate Jose Ozamiz confirming the authority of the President of the Convention to
implement Organic Resolution No. 1, including the creation of the Ad Hoc Committee
ratifying all acts performed in connection with said implementation.

Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other
implementing resolutions thereof subsequently approved by the Convention have no force and effect
as laws in so far as they provide for the holding of a plebiscite co-incident with the elections of eight
senators and all city, provincial and municipal officials to be held on November 8, 1971, hence all of
Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by
said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is,
by the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed
amendment in question cannot be presented to the people for ratification separately from each and
all of the other amendments to be drafted and proposed by the Convention. On the other hand,
respondents and intervenors posit that the power to provide for, fix the date and lay down the details
of the plebiscite for the ratification of any amendment the Convention may deem proper to propose
is within the authority of the Convention as a necessary consequence and part of its power to
propose amendments and that this power includes that of submitting such amendments either
individually or jointly at such time and manner as the Convention may direct in discretion. The
Court's delicate task now is to decide which of these two poses is really in accord with the letter and
spirit of the Constitution.

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They
contend that the issue before Us is a political question and that the Convention being legislative
body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the
control of the Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and Auditor
of the convention expressly concede the jurisdiction of this Court in their answer acknowledging that
the issue herein is a justifiable one.

Strangely, intervenors cite in support of this contention portions of the decision of this Court in the
case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being
divided in their opinions as to the other matters therein involved, were precisely unanimous in
upholding its jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact
of the portions of Our decision they have quoted or would misapply them by taking them out of
context.

There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter,
those of a constitutional convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of Our ruling in that very
case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that
point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: .

As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court —
speaking through one of the leading members of the Constitutional Convention and a
respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the
judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof."

It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue
submitted thereto as a political one declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution — which was being submitted to the people for ratification —
satisfied the three-fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes v. Chief Accountant of the
Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Tañada 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 a constituent assembly. When acting as such, the members
of Congress derive their authority from the Constitution, unlike the people, when
performing the same function, (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 submission of 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
Elections1 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.

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 submission of 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
Elections1 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.

Footnotes

1 Under Section 36, Rule 138 as amended, no one may appear as amicus curiae
unless invited or allowed, by the Court.

REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

1 L-28196, Nov. 9, 1967, 21 SCRA 774, 816-817.

2 L-28224, Nov. 9, 1967, 21 SCRA 774, 816-817.

3 Per Justice J.B.L. Reyes, concurred by Justices Arsenio P. Dizon, Calixto O.

Zaldivar, Fred Ruiz Castro and Eugenio Angeles.

4 21 SCRA 821.

FERNANDO, J., concurring and dissenting:

1 Wood's Appeal, 75 Pa. 59 (1874) cited in Malcolm and Laurel. Cases in

Constitutional Law, pp. 1, 4-5 (1936). It was therein stated: "In a governmental and
proper sense, law is the highest act of a people's sovereignty while their government
and Constitution remain unchanged. It is the supreme will of the people expressed in
the forms and by the authority of their Constitution. It is their own appointed mode
through which they govern themselves, and by which they bind themselves. So long
as their frame of government is unchanged in its grant of all legislative power, these
laws are supreme over all subjects unforbidden by the instrument itself. The calling of
a convention, and regulating its action by law, is not forbidden in the Constitution. It is
a conceded manner, through which the people may exercise the rights reserved in
the bill of rights. ... The right of the people to restrain their delegates by law cannot
be denied, unless the power to call a convention by law, and the right of self
protection be also denied."

2 According to Sec. 1 of Art. II: "Sovereignty resides in the people and all
government authority emanates from them." .
3 11 So. 472. The following excerpt appears in the opinion: "We have spoken of the
constitutional convention as a sovereign body, and that characterization perfectly
defines the correct view, in our opinion, of the real nature of that august assembly. It
is the highest legislative body known to freemen in a representative government. It is
supreme in its sphere. It wields the powers of sovereignty, specially delegated to it,
for the purpose and the occasion, by the whole electoral body, for the good of the
whole commonwealth. The sole limitation upon its powers is that no change in the
form of government shall be done or attempted. The spirit of republicanism must
breathe through every part of the framework, but the particular fashioning of the parts
of this framework is confided to the wisdom the faithfulness, and the patriotism of this
great convocation, representing the people in their sovereignty." The Sproule
decision was cited with approval four years later by the Mississippi Supreme Court
anew in Dickson v. State, 20 So. 841. A 1908 decision of the Southern State of
Oklahoma, State v. Scales, 97 P. 584, admitted the controversial character of the
Sproule dictum.

4 Orfield on The Amending of the Federal Constitution, 45-46 (1942).

5 According to Sec. 2 of Article X of the Constitution: "The Commission on Elections

shall have exclusive charge of its enforcement and administration of all laws relative
to the conduct of elections and shall exercise all other functions which may be
conferred upon it by law." Cf. Abcede v. Imperial, 103 Phil. 136 (1958).

6 "According to Sec. 14 of the 1971 Constitutional Convention Act

(1970):"Administration and Technical Assistance. -- All government entities, agencies
and instrumentalities, including the Senate and House of Representatives, shall
place at the disposal of the Convention such personnel premises, and furniture
thereof as can, in their judgment be spared without detriment to public service,
without cost, refund or additional pay."
G.R. No. L-35925 January 22, 1973

CHARITO PLANAS, petitioner,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35929 January 22, 1973

PABLO C. SANIDAD, petitioner,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35940 January 22, 1973

GERARDO ROXAS, etc., et al. petitioners,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35941 January 22, 1973

EDDIE B. MONTECLARO, petitioner,

vs.
THE COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35942 January 22, 1973

SEDFREY A. ORDOÑEZ, et al., petitioners,

vs.
THE NATIONAL TREASURER OF THE PHILIPPINES, et al., respondents.

G.R. No. L-35948 January 22, 1973

VIDAL TAN, et al., petitioners,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35953 January 22, 1973

JOSE W. DIOKNO, et al., petitioners,

vs.
THE COMMISSION ON ELECTIONS, respondents.

G.R. No. L-35961 January 22, 1973

JACINTO JIMENEZ, petitioner,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35965 January 22, 1973

RAUL M. GONZALES, petitioner,
vs.
THE HONORABLE COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35979 January 22, 1973

ERNESTO HIDALGO, petitioner,

vs.
COMMISSION ON ELECTIONS, et al., respondents.

Ramon A. Gonzales for petitioner Charito Planas.

Pablito V. Sanidad and Gerardo L. Catipon for petitioner Pablo C. Sanidad.

Jovito R. Salonga and Associates and Rodrigo Law Office for petitioners Gerardo Roxas, etc., et al.

Quijano and Arroyo for petitioner Eddie B. Monteclaro.

Sedfrey A. Ordonez and Associates for petitioners Sedfrey A. Ordonez, et al.

Lorenzo M. Tañada for petitioners Vidal Tan, et al.

Francis E. Garchitorena for petitioners Jose W. Diokno, et al.

Jacinto Jimenez in his own behalf.

Raul M. Gonzales in his own behalf.

Ernesto Hidalgo in his own behalf.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T.
Limcaoco, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for respondents.

CONCEPCION, C.J.:

On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by
Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose
amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of
which the election of delegates to said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was
in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed
Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of
the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional
Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or
rejection of the Proposed Constitution on January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G. R. No. L-35925,
against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to
enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any
manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree
"has no force and effect as law because the calling ... of such plebiscite, the setting of guidelines for
the conduct of the same, the prescription of the ballots to be used and the question to be answered
by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged
exclusively in Congress ...," and "there is no proper submission to the people of said Proposed
Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and
there being no sufficient time to inform the people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the
Commission on Elections (Case G.R. No. L-35929); on December 11, 1972, by Gerardo Roxas, et
al., against the Commission on Elections, the Director of Printing, the National Treasurer and the
Auditor General (Case G.R. No. L-35940), by Eddie B. Monteclaro against the Commission on
Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey A. Ordoñez,
et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the
Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948), and by Jose
W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-35953);
on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor
General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No.
L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case G. R. No. L-35965); and on
December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of
Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979).

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

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

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

In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent
motion," praying that said case be decided "as soon as possible, preferably not later than January
15, 1973." It was alleged in said motion, inter alia:

6. That the President subsequently announced the issuance of Presidential Decree

No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain
public questions [Bulletin Today, January 1, 1973];

7. That thereafter it was later announced that "the Assemblies will be asked if they
favor or oppose —

"[1] The New Society;

"[2] Reforms instituted under Martial Law;

"[3] The holding of a plebiscite on the proposed new Constitution and

when (the tentative new date given following the postponement of the
plebiscite from the original date of January 15 are February 19 and
March 5);

"[4] The opening of the regular session slated on January 22 in

accordance with the existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]

8. That it was later reported that the following are to be the forms of the questions to
be asked to the Citizens Assemblies: —

"[1] Do you approve of the New Society?

"[2] Do you approve of the reform measures under martial law?

"[3] Do you think that Congress should meet again in regular

session?

"[4] How soon would you like the plebiscite on the new Constitution to
be held?" [Bulletin Today, January 5, 1973;

9. That the voting by the so-called Citizens Assemblies was announced to take place
during the period from January 10 to January 15, 1973;

10 That on January 10, 1973, it was reported that one more question would be
added to the four (4) questions previously announced, and that the forms of the
questions would be as follows: —

"[1] Do you like the New Society?

"[2] Do you like the reforms under martial law?

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

"[4] Do you like the plebiscite to be held later?

"[5] Do you like the way President Marcos is running the affairs of the
government?" [Bulletin Today, January 10, 1973; additional question
emphasis.]

11. That on January 11, 1973, it was reported that six (6) more questions would be
submitted to the so-called Citizens Assemblies: —

"[1] Do you approve of the citizens assemblies as the base of popular

government to decide issues of national interests?

"[2] Do you approve of the new Constitution?

"[3] Do you want a plebiscite to be called to ratify the new

Constitution?

"[4] Do you want the elections to be held in November, 1973 in

accordance with the provisions of the 1935 Constitution ?

"[5] If the elections would not be held, when do you want the next
elections to be called?

"[6] Do you want martial law to continue?" [Bulletin Today, January

11, 1973; emphasis supplied.]

12. That according to reports, the returns with respect to the six (6) additional
questions quoted above will be on a form similar or identical to Annex "A" hereof;

13. That attached to page 1 of Annex "A" is another page, which we marked as
Annex "A-1", and which reads: —

"COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it

is to be convened at all, it should not be done so until after at least
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.

QUESTION No. 3
 The vote of the Citizens Assemblies should already be considered
the plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the

new Constitution should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections

will be enough for stability to be established in the country, for
reforms to take root and normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want

him to exercise his powers with more authority. We want him to be
strong and firm so that he can accomplish all his reform programs
and establish normalcy in the country. If all other measures fail, we
want President Marcos to declare a revolutionary government along
the lines of the new Constitution without the ad interim Assembly."

Attention is respectfully invited to the comments on "Question No. 3", which reads: —

"QUESTION No. 3

The vote of the Citizens Assemblies should be considered the

plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the

new Constitution should be deemed ratified.

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.

14. That, in the meantime, speaking on television and over the radio, on January 7,
1973, the President announced that the limited freedom of debate on the proposed
Constitution was being withdrawn and that the proclamation of martial law and the
orders and decrees issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];

15. That petitioners have reason to fear, and therefore state, that the question added
in the last list of questions to be asked to the Citizens Assemblies, namely: —

Do you approve of the New Constitution?" —

in relation to the question following it: —

 "Do you still want a plebiscite to call to ratify the new Constitution?" —

would be an attempt to by-pass and short-circuit this Honorable Court before which
the question of the validity of the plebiscite on the proposed Constitution is now
pending;

16. That petitioners have reason to fear, and therefore allege, that if an affirmative
answer to the two questions just referred to will be reported then this Honorable
Court and the entire nation will be confronted with a fait accompli which has been
attained in a highly unconstitutional and undemocratic manner;

17. That the fait accompli would consist in the supposed expression of the people
approving the proposed Constitution;

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

19. That, in such a situation, the Philippines will be facing a real crisis and there is
likelihood of confusion if not chaos, because then, the people and their officials will
not know which Constitution is in force.

20. That the crisis mentioned above can only be avoided if this Honorable Court will
immediately decide and announce its decision on the present petition;

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

At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L-
35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and
L-35942, "Sedfrey A. Ordonez, et al. v. The National Treasurer, et al."

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

... that a restraining order be issued enjoining and restraining respondent

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

In support of this prayer, it was alleged —

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

4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void
particularly insofar as such proceedings are being made the basis of a supposed
consensus for the ratification of the proposed Constitution because: —

(a) The elections contemplated in the Constitution, Article XV, at

which the proposed constitutional amendments are to be submitted
for ratification, are elections at which only qualified and duly
registered voters are permitted to vote, whereas, the so-called
Citizens' Assemblies were participated in by persons 15 years of age
and older, regardless of qualifications or lack thereof, as prescribed in
the Election Code;

(b) Elections or plebiscites for the ratification of constitutional

amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;

(c) The Election Code makes ample provisions for free, orderly and
honest elections, and such provisions are a minimum requirement for
elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and
regulate proceedings of the so-called Citizens' Assemblies;

(d) It is seriously to be doubted that, for lack of material time, more

than a handful of the so-called Citizens' Assemblies have been
actually formed, because the mechanics of their organization were
still being discussed a day or so before the day they were supposed
to begin functioning: —

"Provincial governors and city and municipal mayors

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

It should be recalled that the Citizens' Assemblies were ordered formed only at the
beginning of the year (Daily Express, January 1, 1971), and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of
sufficient guidelines for organizations, it is too much to believe that such assemblies
could be organized at such a short notice.

5. That for lack of material time, the appropriate amended petition to include the
additional officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as noted in the
Urgent Motion of January 12, 1973, the submission of the proposed Constitution to
the Citizens' Assemblies was not made known to the public until January 11, 1973.
But be that as it may, the said additional officials and agencies may be properly
included in the petition at bar because: —

(a) The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or instruction"

so that Presidential Decree No. 86, insofar at least as it attempts to submit the
proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is
properly in issue in this case, and those who enforce, implement, or carry out the
said Presidential Decree No. 86, and the instructions incidental thereto clearly fall
within the scope of this petition;

(b) In their petition, petitioners sought the issuance of a writ of

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

(c) Petitioners prayed for such other relief which may be just and
equitable. (p. 39, Petition).

"Therefore, viewing the case from all angles, the officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be
reached by the processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections has under our laws the
power, among others, of: —

"a) Direct and immediate supervision and control over national,

provincial, city, municipal and municipal district officials required by
law to perform duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this Code ... ."
(Election Code of 1971, Sec. 3).
 6. That unless the petition at bar is decided immediately and the Commission on
Elections, together with the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President the results of the
alleged voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of freedom
and democracy, and the petitioners herein because:

(a) After the result of the supposed voting on the questions mentioned in paragraph 1
hereof shall have been announced, a conflict will arise between those who maintain
that the 1935 Constitution is still in force, on the one hand, and those who will
maintain that it has been superseded by the proposed Constitution, on the other,
thereby creating confusion, if not chaos;

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

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

BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 1102

ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE

CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one

Constitutional Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in

districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;
 WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;

WHEREAS, responding to the clamor of the people and pursuant to Presidential

Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a pIebiscite to be called to ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-
one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;

WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the
new Constitution should already be deemed ratified by the Filipino people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

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

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen
hundred and seventy-three.

(Sgd.) FERDINAND E.
MARCOS
President of the
Philippines

By the President:

ALEJANDRO MELCHOR
Executive Secretary

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

Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the
Members of the Court have been deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the
points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions
attached hereto, except that, instead of writing their separate opinions, some Member have
preferred to merely concur in the opinion of one of our colleagues.

What follows is my own view on these cases.

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

Petitioners in G.R. No. L-35948 maintain that the 1971 Constitutional Convention had exceeded its
authority in approving Sections 2, 3 (par. 2) and 12 of Article XVII of the proposed Constitution.
Regardless of the wisdom and moral aspects of the contested provisions of the proposed
Constitution, it is my considered view that the Convention was legally free to postulate any
amendment it may deem fit to propose — save perhaps what is or may be inconsistent with what is
now known, particularly in international law, as Jus Cogens — not only because the Convention
exercised sovereign powers delegated thereto by the people — although insofar only as the
determination of the proposals to be made and formulated by said body is concerned — but, also,
because said proposals cannot be valid as part of our Fundamental Law unless and until "approved
by the majority of the votes cast at an election at which" " said proposals "are submitted to the
people for their ratification," as provided in Section 1 of Art. XV of the 1935 Constitution.

As regards the authority of the President to issue Presidential Decree No. 73, "submitting to the
Filipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of
the Philippines proposed by the 1971 Constitutional Convention and appropriating funds therefor," I
find it unnecessary, for the time being, to pass upon such question, because the plebiscite ordained
in said Decree has been postponed. In any event, should the plebiscite be scheduled to be held at
any time later, the proper parties may then file such action as the circumstances may justify.

With respect to the question whether or not martial law per se affects the validity of a submission to
the people for ratification of specific proposals for amendment of the Constitution, I consider this
matter as one intimately and necessarily related to the validity of Proclamation No. 1102 of the
President of the Philippines. This question has not been explicitly raised, however, in any of the
cases under consideration, said cases having been filed before the issuance of such Proclamation,
although the petitioners in L-35948 maintain that the issue on the referral of the Proposed
Constitution to the Citizens' Assemblies may be deemed and was raised in their Supplemental
Motion of January 15, 1973. At any rate, said question has not been adequately argued by the
parties in any of these cases, and it would not be proper to resolve such a transcendental question
without the most thorough discussion possible under the circumstances. In fairness to the petitioners
in L-35948 and considering the surrounding circumstances, I believe, therefore, that, instead of
dismissing the case as moot and academic, said petitioners should be given a reasonable period of
time within which to move in the premises.

Recapitulating the views expressed by the Members of the Court, the result is this:

1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No.
73.

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra
and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and
academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said
Decree.

3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to
incorporate therein the provisions contested by the petitioners in
L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become
moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to
uphold the authority of the Convention.

4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had
authority to continue in the performance of its functions despite the proclamation of Martial Law. In
effect, Justices Barredo, Makasiar and Antonio hold the same view.

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

6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and

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

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

c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not
been ratified in accordance with Article XV of the 1935 Constitution, and that,
accordingly, it has no force and effect whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the issue whether
the Proposed Constitution has been ratified by the people or not, "in the absence of
any judicially discoverable and manageable standards," since the issue "poses a
question of fact.

7. On the question whether or not these cases should dismissed, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando, Teehankee and the writer similarly voted, except as regards
Case No. L-35948 as to which they voted to grant to the petitioners therein a reasonable period of
time within which to file appropriate pleadings should they wish to contest the legality of Presidential
Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in said
Case No.
L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther
and decide on the merits everyone of the cases under Consideration.

WHEREFORE, all of the aforementioned cases are hereby dismissed, without special
pronouncement as to costs.

It is so ordered.

Makasiar, J., concur.

Separate Opinions

MAKALINTAL and CASTRO, JJ., concurring:

The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2),
and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971
Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any
similar decree, proclamation, order or instruction unconstitutional, null and void, ..." Basically,
although couched in different language, it is the same relief sought in the other petitions.

Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the
interim National Assembly, which includes, among others, "those Delegates to the (1971)
Constitutional Convention who have opted to serve therein by voting affirmatively for this Article."
Section 3 (par. 2) provides that "(A)ll proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part of the law of the land, and
shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly." And Section 12 states in part: "All treaties,
executive agreements, and contracts entered into by the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations, are hereby
recognized as legal, valid, and binding ..."

Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on
January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same
time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said
plebiscite from being held that these petitions were filed.

The specific grounds alleged in the petition in G.R. No. L-35948 to support the relief prayed for
which are fairly representative of the others, read as follows:

I. The President of the Philippines has no power to call a plebiscite for the ratification
or rejection of the 1972 Draft; neither has he the power to appropriate funds for the
holding of the said plebiscite.

II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation
of power. And it contains provisions which were beyond the power of the convention
to enact. All these have made the 1972 Draft unfit for "proper submission" to the
people.

III. The period of time between November 30, 1972 when the 1972 Draft was
approved, and January 15, 1973, the date the plebiscite will be held, is too
inadequate for the people to be informed of the contents of the 1972 Draft, and to
study and discuss them so that they could thereafter intelligently cast their vote.

Towards the end of December 1972 it was announced in the newspapers that the President had
postponed the plebiscite to a date to be fixed later, although tentatively February 19 and March 5,
1973 were mentioned. The announcement was made officially in General Order No. 20, dated
January 7, 1973. Then on January 17, 1973 the President issued Proclamation No 1102, certifying
that the proposed Constitution had been ratified by the Citizens Assemblies created under
Presidential Decree No. 86, issued on December 31, 1972, and that therefore it had become
effective.

In view of the foregoing developments which supervened after the petitions herein and the answers
thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III
abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January
15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also
premature. But of course whether the petition is moot or premature makes no material difference as
far as these cases are concerned, since the announced ratification of the proposed Constitution by
the Citizens Assemblies has made it unlikely that any plebiscite will be held.

With respect to ground No. II we are of the opinion that the question of whether or not the proposals
referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to
the people for ratification has likewise become moot because of the President's Proclamation No.
1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid
it should be not as mere proposals by the Convention but already as provisions of the Constitution,
and certainly not in the present cases in the state in which they have been submitted for decision.

There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral
argument on his urgent motion for early decision to question the validity of Proclamation No. 1102.
This question is not within the purview of the petition and involves issues which have neither been
raised nor argued herein, having arisen in a new and different setting and frame of reference, and
hence may only be ventilated, if at all, in an appropriate case or at least through appropriate
pleadings so that the parties may be duly heard.

We therefore vote to dismiss the petitions.

TEEHANKEE, J., concurring:

Without prejudice to the filing of a separate extended opinion, I concur with the Chief Justice in his
separate opinion and add the following brief comments.

The Solicitor General's Office on behalf of respondents manifested as of its last comment of January
16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No.
73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite
scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of
General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos."

On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a
premise thereof, inter alia, that "since the referendum results show that more than ninety-five (95)
per cent of the members of the Barangays (Citizens Assemblies)1 are in favor of the New
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people."2

Under the circumstances of record from which it appears that no election (or plebiscite) for the
purpose has been called and held,3 it would be premature for now to hold that the averred ratification
of the Constitution proposed by the 1971 Constitutional Convention has met the requirements of
Article XV of the Constitution that "(S)uch 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" or of section 16 of Article XVII of the proposed
Constitution itself that "(T)his Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose."

With the result reached by the Court, and the rendering moot of the issues raised against the validity
of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave
constitutional question in its two aspects (a) whether the Constitutional Convention may assume the
power to call the plebiscite (a power historically exercised by Congress) and to appropriate funds
therefor against the Constitutional mandate lodging such power in Congress4 and (b) whether the
Constitutional Convention may delegate such assumed power to the President — absent any
showing of willful default or incapacity on the part of Congress to discharge it.

By the same token, it is unnecessary to resolve the equally grave question of whether certain
matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g. sections
2 and 15 of Article XVII (Transitory Provisions) providing for the delegates of said Convention to
constitute the majority of an interim National Assembly and empowering such Assembly "upon
special call by the interim Prime Minister ..., by a majority vote of all its members, (to) propose
amendments to this Constitution (which) shall take effect when ratified in accordance with Article
Sixteen hereof", which would appear to be in violation of the accepted principles governing
constitutional conventions that they become functus officio upon completion of their function to
formulate and adopt amendments to the Constitution5 for the people's ratification or rejection in the
manner ordained in the Constitution6 — since such convention controlled interim National Assembly
may continue proposing Constitutional amendments by mere majority vote in contrast to
the regular national assembly which would require "a vote of three-fourths of all its members" to
propose such amendments.7

ANTONIO, J., concurring:

The historical events of the last few days have rendered the petitions (G.R. Nos. L-35925, L-35929,
L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979), including the
supplemental petition moot and should be dismissed.

Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of
the Constitutional Convention to propose amendments to the Constitution is its authority to order an
election at which such amendments are to be submitted to the people for ratification and, within the
narrow range implied as necessary for the business of submitting the amendments to the people, the
capacity to appropriate money for the expenses necessary to make such submittal effective.
Independently therefore of the question, whether or not the President may legislate during martial
law, it was certainly within the authority of the President to issue such measures, acting as agent for
and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and
appropriate money for said purpose.

The opinion that the President, as agent of the Convention, could device other forms of election to
determine the will of the majority of the people on the ratification of the proposed Constitution,
establishes a principle that is, not entirely devoid of precedent. The present Constitution of the
United States was ratified in a manner not in accord with the first Constitution of the United States,
which was the Articles of Confederation. The violation was deliberate, but Madison, however
defended the method provided for the adoption of the new Constitution by saying that it was a case
"of absolute necessity" which forced the framers of the new Constitution to resort "to the great
principle of self-preservation; to the transcendental law of nature and of nature's God, which
declares that the safety and happiness of society are the objects at which all political institutions aim,
and to which all such institutions must be sacrificed." While I agree that this precedent is never one
that would justify governmental organs in ignoring constitutional restraints, the fact is the people
themselves had already acted by adopting the procedure devised in the expression of their
sovereign will.

To the contention of one of the petitioners, that the draft of the Constitution contains provisions
beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that
there is nothing that can legally prevent a convention from actually revising the entire Constitution
for, in the final analysis, it is the approval of the people that gives validity to any proposal of
amendment or revision.

I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant
the presumption that the results of the plebiscite of ratification is not a genuine and free expression
of the popular will.

It poses a question of fact which, in the absence of any judicially discoverable and manageable
standards, or where the access to relevant information is insufficient to assure the correct
determination of the issue, I do not feel that this Court is competent to act.
If the ratification of the new Constitution and the new government erected thereon, is not what it is
represented to be, the expression of the will of the majority or the people are dissatisfied, they have
ample remedy. The instrument itself provides amendment and change. For the only and proper way
in which it should be remedied, is the people acting as a body politic. These questions relate to
matters not to be settled on strict legal principles. For the new Constitution has been promulgated
and great interests have already arisen under it. The political organ in the government has
recognized it and has commenced the implementation of its provisions. Under such circumstances
the Court should therefore refrain from precipitating impossible situations which might otherwise rip
the delicate social and political fabric.

The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In
the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the
historical facts that culminated in the national referendum. The people wanted a revolutionary
change. They were aware of the manifold problems of the nation — its poverty, corruption, injustice,
subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few
months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains
of the commonweal may be conserved and further enlarged. In the ambience of such a historical
setting, it would have been presumptuous to assume that the qualified voters in the reportedly more
than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear.
Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the
people themselves.

In all other respects, the opinion of Justice Barredo, merits my concurrence.

ESGUERRA, J., concurring:

I vote to deny all petitions seeking to prohibit the holding of the plebiscite on January 15, 1973, on
the Constitution of November 30, 1972, as provided for in Presidential Decree No. 73 of December
1, 1972. Specifically, I vote to deny the supplemental petition in G.R. No. L-35948 seeking to restrain
the Citizens Assemblies' referendum in connection with that ratification of said Constitution.

My reasons are simple and need no elaborate and lengthy discussion.

1. In the first place, these cases have been moot and academic as the holding of the plebiscite
scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated
January 7, 1973. Consequently, there is nothing more to prohibit or restrain.

2. In the second place, the supplemental petition in G.R. No. L-35948 to restrain the respondents,
including three additional parties, namely Secretary Jose Rono as head of the Department of Local
Governments; Secretary Conrado Estrella, as head of the Department of Agrarian Reforms and
Secretary Guillermo de Vega, as Chairman of the National Ratification Coordinating Committee, who
were not duly served with summons and have never been heard, has been rendered futile as the
Citizens Assemblies have expressed their decisions to ratify the 1972 Constitution and said officers
have reported to the President and on the basis thereof he has announced the ratification of said
Constitution by Proclamation No. 1102, dated January 17, 1973, effective 12: 00 o'clock noon of said
date. Hence there is also nothing more to restrain or prohibit as the acts sought to be stopped have
been fully accomplished.

I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of
any evidence to overthrow the veracity of the facts therein related, there being no case formally filed
with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for
the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed
Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is
absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do
so would be simply tiding rough shod over the well-beaten road of due process of law which
basically requires notice and full and fair hearing.

Without any competent evidence I do not pretend to know more about the circumstances attending
the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume
that what the proclamation says on its face is true and until overcome by satisfactory evidence, of
which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was
not held accordingly.

At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be
resolved without raising the legality of the Government under which we are now operating as of
January 17, 1973. Hence We would be confronted with a political question which is beyond the
jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on
November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the
manner of its ratification has been innocuous. Having been invested with full force and effect by the
approval of an overwhelming majority of the people, to mount an attack against it now would be
nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique
literary character and I prefer to take things in the light of the stark realities of the present. I have
always adhered to the idea that the practical approach to any question yields the happiest solution,
instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures.

FERNANDO, J., concurring and dissenting:

While I am in agreement with the resolution of the Court dismissing the petitions for their being moot
and academic, I feel that a brief separate opinion expressing my views on certain legal issues would
not be amiss, considering the transcendental character of the suits before us. Indisputably, they
involve the crucial role assumed by the Executive in the proposed submission of the new
Constitution, perhaps unavoidably thrust upon him in view of the declaration of martial law. It is
reassuring that there is a reiteration of the principle that the amending process, both as to proposal
and ratification, raises a judicial question. Notwithstanding the vigor and plausibility with which the
Solicitor-General stressed what for him is the political nature of the controversy, with considerable
support from authorities on constitutional law partial to the judicial restraint approach, it would be, for
me, a plain abdication of the trust reposed in this Court, if it would rule itself as devoid of authority to
inquire into the validity of the steps taken towards the ratification of the proposed amendments. The
most that I can concede is that where the effect of the nullification sought is to prevent the sovereign
people from expressing their will, the utmost caution and circumspection should be exercised.

Now, as to the merits of the issues that would have called for resolution, were it not for the matter
becoming moot and academic. While not squarely raised, the question of whether or not a
constitutional convention could go on meeting with martial law in force has a prejudicial aspect.
Following the ruling in Duncan v. Kahanamoku1 that Legislature and courts continue to function even
under such period, being not merely cherished governmental institutions but indispensable to the
operation of government, there is no doubt in my mind that the same principle should likewise apply
to a constituent body. To the contention pressed by Senator Tanada, as counsel, in Tan v.
Commission on Elections, that the proposed Constitution contains provisions beyond the power of
the Constitutional Convention to submit for ratification, it seems to me a sufficient answer that once
convened, the area open for deliberation to a Constitutional Convention and thereafter to be
embodied in proposed amendments if approved by the majority, is practically limitless.2 In that
sense, it can be truly stated that the Convention can propose anything but conclude nothing. As was
intimated by Justice Makasiar, speaking for the Court in Del Rosario v. Comelec,3"whether the
Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the
present Constitution and propose an entirely new Constitution based on an ideology foreign to the
democratic system, is of no moment; because the same will be submitted to the people for
ratification. Once ratified by the sovereign people, there can be no debate about the validity of the
new Constitution."4 Once its work of drafting has been completed, it could itself direct the submission
to the people for ratification as contemplated in Article XV of the Constitution. Here it did not do so.
With Congress not being in session, could the President, by the decree under question, call for such
a plebiscite? Under such circumstances, a negative answer certainly could result in the work of the
Convention being rendered nugatory. The view has been repeatedly expressed in many American
state court decisions that to avoid such undesirable consequence, the task of submission becomes
ministerial, with the political branches devoid of any discretion as to the holding of an election for that
purpose.5 Nor is the appropriation by him of the amount necessary to be considered as offensive to
the Constitution. If it were done by him in his capacity as President, such an objection would indeed
have been formidable, not to say insurmountable.6 If the appropriation were made in his capacity as
agent of the Convention to assure that there be the submission to the people, then such an
argument loses force. The Convention itself could have done so.7 It is understandable why it should
be thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could
conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of
being rendered financially distraught. The President then, if performing his role as its agent, could be
held as not devoid of such competence. That brings me to the argument as to the absence of proper
submission, developed with the customary learning and persuasiveness by Senators Tanada and
Salonga. With all due recognition of their forensic skill, I prefer to rely on what, for me, is the correct
principle announced in the opinion of the Chief Justice in Gonzales v. Commission on Elections:8 "A
considerable portion of the people may not know how over 160 of the proposed maximum of
representative districts are actually apportioned by R.B.H. No. 1 among the provinces in the
Philippines. It is not improbable, however, that they are not interested in the details of the
apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear
vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves
sufficiently by reading the copies of the proposed amendments posted in public places, the copies
kept in the polling places and the text of contested resolutions, as printed in full on the back of the
ballots they will use. It is, likewise, conceivable that as many people, if not more, may fail to realize
or envisage the effect of R.B.H. No. 3 upon the work of the Constitutional Convention or upon the
future of our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint,
the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that
R.B.H. No. 3 permits Congressmen to retain their seats as legislators, even if they should run for
and assume the functions of delegates to the Convention. We are impressed by the factors
considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such
factors affect the wisdom of Republic Act No. 4913 and that of R.B.H. Nos. 1 and
3, not the authority of Congress to approve the same. The system of checks and balances
underlying the judicial power to strike down acts of the Executive or of Congress transcending the
confines set forth in the fundamental laws is not in derogation of the principle of separation of
powers, pursuant to which each department is supreme within its own sphere. The determination of
the conditions under which the proposed amendments shall be submitted to the people is
concededly a matter which falls within the legislative sphere. We do not believe it has been
satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No.
4913."9

Nonetheless, were it not for the fact that the matter had become moot and academic, I am for
granting the petitions in view of what, for me, is the repugnancy between an election contemplated
under Article XV of the Constitution in herein the voters can freely register their will, whether it be for
approval or disapproval, and the existence of martial law, with its connotation that dissent may be
fraught with unpleasant consequences. While it is to be admitted that the Administration has done its
best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede
that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident
to such a regime has been reduced to a minimum. I fail to see then the existence of that
indispensable condition of freedom that would validate the ratification process as contemplated by
the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are
fundamental concepts of judicial review precludes it this state the expression of any opinion. It
would, at the very least, be premature. 10

BARREDO, J., concurring and dissenting:

With full consciousness of the transcendental consequences of the action the Court is taking in
these cases, not only upon me personally and as a member of the Supreme Court but upon the
Court itself as the guardian of the Constitution, which all its members have solemnly sworn in the
name of God to uphold and defend, and after long and serious consideration of all aspects and
angles of the issues submitted for resolution by the parties, I have come to the sincere conviction
that the petitions herein should be dismissed, including the supplemental petition filed by petitioners
in G.R. No. L-35948, with the consequent denial of the motion for the issuance of a writ of
preliminary injunction or a temporary restraining order enjoining in effect any act which would imply
giving force and effect to the 1972 Constitution which President Ferdinand E. Marcos proclaimed as
ratified in Proclamation No. 1102 as of twelve o'clock noon on January 17, 1973. Without prejudice
to a more extended opinion later, my reasons for this conclusion are as follows:

As of today, two matters present themselves for Our immediate resolution, namely, (1) the petitions
in all of these cases praying for a writ of prohibition against the implementation of Presidential
Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the
ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being
January 15, 1973, and (2) the supplemental petition, with prayer for the issuance of a writ of
preliminary injunction or a restraining order, in G.R. No. L-35948 to enjoin whatever ratification of the
said Constitution would be proposed by the Citizens Assemblies, established under Presidential
Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to
such ratification, should it be proclaimed, which, by the way, everybody knows was already done at
about 11:00 o'clock A.M. on January 17, 1973.

As to No. (1), I vote to dismiss the original petitions in all these cases for the simple reason that the
alleged grounds thereof are either untenable or have been premature, if not somehow moot and
academic, at least, meanwhile that the plebiscite had not been reset.1

(a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a
justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v.
Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this pose.

(b) On the other hand, I am of the considered view that it is not within the competence of this Court
to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the
Convention. The Convention was called for the purpose of proposing amendments to the
Constitution, and like any Constitutional Convention it was completely and absolutely free to make
any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires
proposals advanced by petitioners is to me without sufficient legal basis.

(c) Much less can I accept the view that the Convention's task was limited to proposing specific
amendments to become either as new parts of the existing Constitution or as replacements of
corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in
this regard, I feel safe in saying that when the people elected the delegates to the Convention and
when the delegates themselves were campaigning such limitation of the scope of their function and
objective was not in their minds. Withal, considering the number and nature of the proposals already
being publicly discussed before and after said election, to follow petitioners' suggestion would have
produced confusion and probably insurmountable difficulties even in the framing and phrasing alone
of the amendments so that they may easily and clearly jibe with the other parts of the existing
Constitution.

(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No.
73, I maintain that independently of the issue of whether or not the President may legislate during
martial law relative to matters not connected with the requirements of suppressing the armed
insurgency and the maintenance of peace and order, it was within the prerogative of the President to
issue said decree, considering that in doing so he merely acted as agent for and on behalf of the
Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I
individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for
the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent
and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972,
delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules
requiring the laying down of standards in the delegation of legislative functions binding Congress do
not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of
legislative authority than Congress in matters related to the accomplishment of its objectives, it
follows that Presidential Decree No. 73 was validly issued.

(e) All the other objections to said decree were rendered premature, if not somehow moot and
academic for the time being, because under General Order No. 20, dated January 7, 1973, the
President postponed the plebiscite until further notice. Such being the case, nobody could positively
say that the President would not allow Congress to pass a plebiscite law or that he would not lift
martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that
are supposed to be ratified together with the Constitution itself would not be published, for the proper
information of all concerned before the next date to be fixed for the plebiscite. In other words, no one
could say that appropriate steps would not be taken to meet the objections alleged in the petitions
before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue
the factual setting whereof may still be materially altered.

(f) On whether or not the holding of the plebiscite during martial law would materially affect proper
submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents
that this is a question of fact which cannot be pre-determined and that it would, therefore, be the
burden of the petitioners to show by evidence that such freedom had been actually and substantially
impaired. When one recalls that measures were taken by the President precisely to provide the
widest opportunity for free debate and voting, consistent with the nature and purpose of the
plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him,
which measures he had to withdraw only when in his judgment he deemed it to be so required by
public safety, it does not seem altogether logical to assume that the existence of martial law per se
deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use
an apt expression, does not carry with it necessarily all the implications thereof as these are known
in other lands and in the recorded precedents.

Coming now to No. (2), it is evident that under the theory above-referred to that as agent of the
Convention, the President could devise other forms of plebiscite to determine the will of the majority
of the people vis-a-vis the ratification of the proposed Constitution, I believe that the establishment of
the Citizens' Assemblies as a mode of such plebiscite cannot be said to be clearly beyond the
contemplation of Article XV of the Constitution of 1935. It must be observed, however, that under
Article X of the same Constitution, it is the Commission on Elections that is supposed to "have
exclusive charge of the enforcement and administration of all laws relative to the conduct of
elections ..." and this function cannot be removed from the Commission whether by Congress or by
the President.2This constitutional point seems to have been overlooked in the proceedings in the
Assemblies, since it does not appear from any of the official documents relative thereto that the
same have been undertaken or held under the charge of the Commission.

Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact,
the answering of the questions and the canvassing and reporting of the referendum in the
Assemblies throughout the country were done exactly in the manner and form that they should have
been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise
stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By
this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis
of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted,
which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many
places, judged on the basis of the requirements of the prevailing election laws.

On the other hand, in spite of these considerations, I do not find myself in a position to deny the
factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval
of the proposed Constitution and would consider the same as already ratified by them. I understand
that this number was determined on the basis of sworn reports of the respective heads of the
Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting
that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes
to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it
would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in
dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading
to the issuance of said proclamation may be deemed already cured by the apparent will of the
people however imperfectly, under legal and technical standards, the same has been expressed. To
grant the prayer of petitioners now would be tantamount to defying the very sovereign people by
whom and for whom the Constitution has been ordained, absent any demonstrated facts showing
that they prefer the status quo, which the Convention was precisely called to change meaningfully, to
the wide-range reforms everybody can see are being effected in practically all levels of the
government and all sectors of society. Withal, to issue any such injunctive writ at this stage of
denouncement of national events is to court consequences too horrible to imagine.

To the possible stricture that persons less than twenty-one years of age were allowed to participate
and vote in said Assemblies, my reaction is that I am not sure that Article V of the 1935 Constitution,
viewed in the light of the perceptible universal drift towards the enfranchisement of the youth, may
not be construed as permitting legislative enlargement of the democratic base of government
authority, since the said Article does not say that those thereby qualified are the only ones who can
vote - the language being simply that "suffrage may be exercised by male citizens of the Philippines
not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the municipality wherein they
propose to vote for at least six months preceding the election. ...," which, to me, strictly speaking,
only guarantees the right of suffrage to those enumerated but does not deny to the legislature the
power to include others who in its wisdom it believes should also enjoy such right. In any event, it is
elementary under our election law and jurisprudence that should it appear that disqualified persons
have succeeded in voting in an election, such election is not thereby necessarily rendered wholly
illegal, but the votes of such persons are only correspondingly deducted after being duly identified.
Accordingly, on the premise that the inclusion of those below 21 is illegal, their votes may be
deducted from the 14,000,000 or so aforementioned, and I am certain no one will deny that the
remainder would still be substantially sufficient to constitute a recognizable mandate of the people,
for under normal circumstances which must be presumed, and making the most liberal estimate, the
votes of the under aged voters among them could not have been more than one-third of said
number. Indeed, at the most, if this point had been considered before the issuance of Proclamation
1102, an injunction might have issued to restrain the under aged persons from participating in the
referendum, but now that the result thereof is a fait accompli, I cannot see how such a possible flaw
can be of any material consequence.

As may be noted, I have taken it upon myself to rule on the legal issues surrounding Proclamation
1102. Indeed, I feel very strongly that, as a member of the Supreme Court, it is my duty to our
people to enlighten them as to said issues. The eyes of the whole country have been pinned on Us
since the Convention approved the draft of the Constitution in question on November 30, 1972, and
the President called, on December 1, 1972, thru Presidential Decree No. 73, for a plebiscite
scheduled to be held on January 15, 1973, for its ratification. Concerned citizens purporting to speak
for the people have precisely come to the Court challenging the legality of the procedure thus
pursued as not being in consonance with the amending process specified in the 1935 Constitution
and praying that the Court enjoin the continued adoption of said procedure. Everybody knows that
they came to Us with the conviction that the Court would not hesitate to play its role as the final
authority designated by the Constitution itself to interpret and construe its provisions.

Accordingly, We gave due course to their petitions, and for two days, December 18 and 19, We
heard brilliant and learned counsel of both sides argue eloquently, even with obvious patriotic fervor
but in view of the circumstances related in the separate opinion of the Chief Justice, We were unable
to decide the cases even as late as January 13, 1973. Petitioners then came with motions urgently
seeking an early decision, and soon after, or, on January 15, 1973, petitioners in G.R. No. L-35948
filed a supplemental petition relative to the latest developments involving the creation of Citizens
Assemblies and the persistent reports indicating almost to a certainty that a proclamation would be
issued doing away with the usual plebiscite procedure and already proclaiming the proposed
Constitution as ratified and in force, on the basis alone of the favorable result of a referendum in said
Assemblies. Their main prayer was for Us to issue a writ of prohibition against the submission and
approval of the reports of the results of said referendum. We immediately required the respondents
to answer the supplemental petition not later than January 16 and set the case for hearing on
January 17 at 9:30 o'clock in the morning.

In closing his arguments before the Court that fateful morning, Senator Lorenzo Tanada, the
tenacious counsel for petitioners, pleaded earnestly, even after the Chief Justice had read to him in
open session the text of Proclamation 1102 which had just been delivered by the Secretary of
Justice, that the Court rule squarely on the issues petitioners have raised. He told Us that it is
secondary whether Our judgment should be favorable or unfavorable to petitioners, what is most
important is for the people to know whether or not the provisions of the Constitution have been
observed.

Indeed, no graver responsibility rests on the shoulders of the Court. And as I see it, We cannot shirk
that responsibility by alleging technical excuses which I sincerely believe are at best of controversial
tenability.

I cannot share the view that the validity and constitutionality of Proclamation 1102 have not been
submitted to Us for resolution in these proceedings. I maintain that for all intents and purposes, the
supplemental motion of Senator Tanada of January 15 placed those transcendental issues before
Us. Not only in his pleading but more so in his oral argument, Senator Tanada, with all the vigor of
his mind and the sincere patriotism of his heart, contended that with the creation of the Citizens
Assemblies and the referendum being conducted therein, and particularly in view of the two
questions to be answered, namely, "Do you approve of the proposed constitution?" and "Do you
want the plebiscite to be held?", there was no doubt that Article XV of the Constitution was being
bypassed and that this Court was being "short-circuited." In terms that could not have been plainer,
he pointed to the impending probability of the issuance of a proclamation of the nature of
Proclamation 1102, and he prayed eloquently, that We should act without loss of time to stop the
purported reports of the referendum so as to remove the basis for such feared eventuality. So much
so, that after the Chief Justice read the proclamation to him, he dramatically exclaimed, "I have been
confirmed." Others would have said, "Consummatum est!"

Under these circumstances, I cannot see how it can be held that We can refrain from ruling on the
legal and constitutional significance of Proclamation 1102. At the very least, the present state of the
case of Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon Us the ineludible
obligation to rule whether or not We should have enjoined the submission of the reports of the
Assemblies, as demanded by petitioners, it being evident that as Senator Tanada contended said
reports were to be utilized as basis for the issuance of a proclamation declaring the proposed
Constitution as ratified and already in force. In similar past cases too numerous to cite, this Court
and all courts in the country, I dare say, have always considered the consummation of a threatened
act, after the petition to enjoin it has been submitted to the court's jurisdiction, as fit subject for its
disposition, within the same proceedings, to the extent that the courts even issue mandatory
injunctions, in appropriate cases, for the respondents to undo what has already been done without
having to hold any further hearing. It is claimed that the parties must be fully heard — but have we
not heard enough from them? Has not Senator Tanada presented all his arguments in support of his
supplemental petition? And if he has not, is it the fault of the Court? Is it fair to all concerned that
such possible omission be considered as a ground for Our withholding Our judgment on what under
the law and the rules is already properly before Us for resolution? Truth to tell, I cannot imagine a
fuller ventilation of the cause of any other petitioner who has come to this Court than petitioners in
G.R. No. L-35948. Rarely has the Court held hearings for days and more unusually has it given any
counsel almost unlimited time to speak, but these We have done in these cases. Can any party ask
for more? If at all, only the respondents have not adequately presented their side insofar as the
supplemental petition is concerned, but, again, it cannot be said that they have not had the
opportunity to do so. The Acting Solicitor General has unqualifiedly filed his answer on behalf of all
the respondents, and to me, his attempt to impress the Court that the new respondents have not
been summoned and that the subject petition is premised on probabilities and conjectures is of no
moment, considering the grave importance of the issues and the urgent necessity of disposing them
expeditiously and without unnecessary loss of fateful time. Of course, I respect the reasons of my
colleagues who cannot see it my way, but as far as I am concerned, this is as appropriate a case
and an occasion as any can be to resolve all the fundamental issues raised by petitioners, and to
leave them unresolved now would be practically inviting some non-conformists to challenge the
Constitution and to keep not only the wheels of the transition at a standstill, but worse, also the
animus of the people in suspended animation fraught with anxiety, with all the dire consequences
such a situation entails.

Some legalists would call the government under the proclaimed Constitution a revolutionary
government, but the President denies that it is, because, according to him, it is to operate under a
Constitution ratified by the people. At this crucial moment in the history of the nation, We need not
bother about variant nomenclatures; these can be subjective and are, in any event, unsubstantial.
What is of supreme and utmost importance is that the people be told what exactly the situation is,
sans the veneer of what might turn out after all to be an inaccurate appellation. The people must
know the real score, and, as a member of the Supreme Court, I do not hesitate to tell them that, as I
have already explained above, in my honest opinion, the purported ratification of the Constitution
attested in Proclamation 1102 and based on the referendum among the Citizens Assemblies falls
short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. I must
hasten to add, however, that such unfortunate drawback notwithstanding, and considering all other
relevant circumstances, principally, the naked proof before Us indicating that the people approve of
it, I earnestly and sincerely believe that the new Constitution is legally recognizable and should be
recognized as legitimately in force.
I reiterate I have no legal means of denying it to be a fact, as stated in the proclamation, that
14,000,000 Filipinos have manifested in the referendum in the Citizens Assemblies their approval of
this Constitution. And even if We considered that said referendum was held under the aegis of full
implementation of the martial law proclaimed by the President under Proclamation 1081, as
mandated by General Order No. 20, We would not be able to ignore that the government under this
Constitution is well organized and is in stable, effective and complete control of the whole Philippine
territory, and what is more pertinently important, that this Constitution purged as it is now of its
Achilles heel, the Interim National Assembly, may fairly be said to be acceptable generally to the
people, embodying as it does meaningful reforms designed to check, if not to eradicate the then
prevalent causes of widespread popular restiveness and activism which has already assumed
practically the proportions of an armed insurgency or rebellion somehow endangering the security
and safety of the constituted government, if not the integrity of the nation. And in connection with the
implementation of martial law thus ordered, as I have already noted earlier in this opinion, its being
done Philippine style may be of some relevance, since such enforcement is not characterized by the
rigor that the usual concept of martial law connotes, hence, any suggestion of constructive duress
relative to the proceedings in the Assemblies and the Barangays may not fully hold water. Upon
these premises, it is my considered opinion that if in any sense the present government and
Constitution may be viewed as revolutionary, because they came into being, strictly speaking, extra-
constitutionally or outside the pale of the 1935 Constitution, they are nonetheless entitled to be
accorded legitimate standing, for all intents and purposes and for all concerned, under the
universally accepted principle that a revolution, whether violent or bloodless, is illegal only when it
fails to gain the support of the people. Indeed, under these circumstances, I cannot resist the
temptation of asking, is it juridically possible for this Court to declare unconstitutional and without
force and effect the very Constitution under which it presently exists? I am inclined to hold that the
answer to this question can only be in the negative. Consequently, petitioners are not entitled to any
judicial relief and, I have no alternative but to vote for the dismissal of the supplemental petition of
January 15, 1973.

In conclusion, I hold that the 1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution now in force by virtue of Proclamation 1102, issued
pursuant to the certified results of the referendum in the Citizens Assemblies all over the country
favoring its adoption and enforcement.

Long live our country, the Philippines! God bless our people, the Filipino people!

ZALDIVAR, J., dissenting:

I cannot agree with my worthy colleagues who hold the view that the petitions in all these have
become moot and academic simply because the relief prayed for by petitioners cannot be granted
after Proclamation No. 1102 was issued by the President of the Philippines. A case does not
become moot where there remain substantial rights or issues that are controverted and which are
not settled.1 This Court has decided cases even if no positive relief, as prayed for by a party in the
case, could be granted, or even if a party has withdrawn his appeal, if the case presented to the
court for resolution is a clear violation of the Constitution or of fundamental personal rights of liberty
and property.2

In the present cases it is in the public interest that this Court renders a ruling on the transcendental
issues brought about by the petition — issues which must be resolved by this Court as the guardian
of the Constitution of this Republic.

For a comprehensive appraisal of the facts and circumstances relevant to the resolution of the
issues involved in these cases, We shall narrate pertinent events, as shown in the record.
On December 1, 1972 the President of the Philippines, in his capacity as Commander-in-Chief of all
the Armed Forces of the Philippines and acting pursuant to Proclamation No. 1081, dated
September 21, 1972, issued Presidential Decree No. 73, submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds for the purpose. The Decree states that the same
was issued pursuant to Resolution No. 5843 of the 1971 Constitutional Convention proposing "to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor." "3 The decree set the plebiscite for January 15, 1973 and appropriated the
sum of P15,000,000.00 to carry out the purpose of the decree. The Decree provided for the
publication of the proposed Constitution, the dissemination of information regarding the proposed
Constitution, the application of the provisions of the Election Code of 1971 to the plebiscite insofar
as they are not inconsistent with the provisions of the decree, specially stating that the provisions of
said Code regarding the right and obligations of political parties and candidates shall not apply to the
plebiscite. The Decree further provided for a calendar for the plebiscite, for the registration of voters,
for the constitution of the board of inspectors, for watchers, for precincts and polling places, for the
official ballots to be used, for the preparation and transmission of plebiscite returns, for the canvass
of the returns by the city, municipality, and the municipal district board of canvassers, for the
canvass by the Commission on Elections and the proclamation of the results by said Commission,
for supplies and services needed for the holding of the plebiscite, and on the authority given to the
Commission on Elections to promulgate rules and regulations necessary to carry out the provisions
of the Decree.

On December 1, 1972, the President of the Philippines also issued General Order No. 17, ordering
and enjoining the Armed Forces of the Philippines and all other departments and agencies of the
Government to allow and encourage public and free discussions and debates on the proposed
Constitution before the plebiscite set for January 15, 1973.

During the first half of the month of December 1972, the petitioners, in the ten cases now before this
Court, filed petitions for prohibition with preliminary injunction, seeking to prevent the holding of the
plebiscite on January 15, 1973. The petitioners question the validity of Presidential Decree No. 73,
principally upon the ground that it is not in the power of the President of the Philippines to call a
plebiscite for the ratification or rejection of the proposed Constitution and to appropriate public funds
for the purpose. The petitioners also maintain that the period of only about 45 days from the date of
the approval of the proposed Constitution by the Constitutional Convention on November 30, 1972 to
January 15, 1973, was not a sufficient time for the electorate of this country to be properly informed
regarding the provisions of the proposed Constitution, and the electorate could not therefore vote
intelligently on whether to ratify or to reject the proposed Constitution, and so there could be no
proper submission of the proposed Constitution to the electorate. The petitioners further maintain
that the country being under martial law there could not be a free submission of the proposed
Constitution to the electorate. In some of the petitions, the petitioners also maintain that the
proposed Constitution contains provisions which are beyond the power of the Constitutional
Convention to adopt or to propose. All the petitioners prayed this Court to issue a writ of preliminary
injunction or restraining order to prevent the respondents in each of the petitions from implementing
Presidential Decree No. 73. This Court, however, did not issue the preliminary injunction, nor the
restraining order, prayed for. This Court required the respondents in each petition to answer the
petition, and set the cases for hearing on the petition for preliminary injunction and on the merits of
the case for December 18, 1972. Hearings were actually held for two days — on December 18 and
19, 1972.

On December 31, 1972, while these cases were pending before this Court, the President of the
Philippines issued Presidential Decree No. 86 creating the Citizens Assemblies throughout the
country. Among others, Decree No. 86 provides that there is created a citizen assembly in each
barrio in municipalities, and in each district in chartered cities, provided that in the case of Manila
and other chartered cities where there are no barrios there shall be a citizen assembly in every ward;
that the citizen assemblies shall consist of all persons who are residents of the barrio, district, or
ward for at least six months, 15 years of age or over, citizens of the Philippines, and who are
registered in the list of citizens assembly members kept by the barrio, district or ward secretary. As
stated in the decree, the purpose of establishing the citizens assemblies is to broaden the base of
the citizens' participation in the democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues.

On January 5, 1973 the President of the Philippines issued Presidential Decree No. 86-A which,
among others, provided for the submission to the citizens' assemblies created under Presidential
Decree No. 86 questions to be answered, and among those questions are these two: (1) "Do you
approve of the new Constitution?"; (2) "Do you still want a plebiscite to be called to ratify the new
Constitution ?"

On January 7, 1973 the President issued General Order No. 20, ordering the postponement of the
plebiscite that had been scheduled for January 15, 1973. Said general order reads as follows:

GENERAL ORDER NO. 20

WHEREAS, pursuant to Presidential Decree No. 73 dated December 1, 1972, a

plebiscite has been called on January 15, 1973 at which the proposed Constitution of
the Philippines shall be submitted to the people for ratification or rejection;

WHEREAS, Presidential Decree No. 86, dated December 31, 1972, created Citizens
Assemblies so as to afford ample opportunities for the citizenry to express their views
on important national issues;

WHEREAS, one of the questions presented to the Citizens Assemblies is: "Do you
like the plebiscite on the proposed Constitution to be held later?

WHEREAS, it is necessary to hold in abeyance the plebiscite until the people's

preference has been ascertained;

NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the

Armed Forces of the Philippines, and pursuant to Proclamation No. 1081, dated
September 21, 1972, do hereby order that the plebiscite scheduled to be held on
January 15, 1973, be postponed until further notice.

I further order that the provision of Section 3 of Presidential Decree No. 73 insofar as
they allow free public discussion of the proposed Constitution, as well as my order of
December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for
the purposes of free and open debate on the proposed Constitution, be suspended in
the meantime.

Done in the City of the Manila, this 7th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.

(Sgd.) FERDINAND E.
MARCOS
President
 Republic of the
Philippines

By the President:

(Sgd.) ALEJANDRO MELCHOR

Executive Secretary

As of the day when the above-quoted General Order No. 20 was issued these cases were all
pending decision before this Court.

At this juncture I am going to particularize my discussion on case G.R. No. L-35948 (Vidal Tan, et
al., petitioners vs. Commission on Elections, et al., respondents). What I say in connection with the
Vidal Tan case may also be considered in relation with the other cases before Us.

On January 12, 1973 counsel for the petitioners in the Tan case filed an "Urgent Motion For Early
Decision", alleging, among others, that it was announced that voting by the Citizens' Assemblies
would be held on January 10 to 15, 1973 whereby the Citizens' Assemblies would be asked a
number of questions, among them the following:

(1) Do you approve of Citizens' Assemblies as the base of popular government to

decide issues of national interests?

(2) Do you approve of the new Constitution?

(3) Do you want a plebiscite to be called to ratify the new Constitution?

(4) Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?

(5) If the election would not be held, when do you want the next elections to be
called?

(6) Do you want martial law to continue?

Counsel for the petitioners also alleged that petitioners had reasons to fear that the question: "Do
you approve of the new Constitution?", in relation to the question following it: "Do you still want a
plebiscite to be called to ratify the new Constitution?", would be an attempt to bypass and short-
circuit this Court before which the question regarding the validity of the plebiscite scheduled for
January 15, 1973 on the proposed Constitution was pending resolution. Counsel for petitioners also
alleged that they had reasons to fear "that if an affirmative answer to the two questions just referred
to would be reported then this Honorable Court and the entire nation would be confronted with a fait
accompli which has been attained in a highly unconstitutional and undemocratic manner;" and
"the fait accompliwould consist in the supposed expression of the people approving the proposed
Constitution." Counsel further states "that if such event would happen then the case before this
Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the people through the
Citizens' Assemblies, it would be announced that the proposed Constitution with all its defects, both
congenital and otherwise, has been ratified" and "that in such a situation, the Philippines would be
facing a real crisis and there is a likelihood of confusion if not chaos, because then, the people and
their officials would not know which Constitution is in force."4
On January 13, 1973 this Court ordered the Solicitor General to answer the urgent motion of the
petitioners, dated January 12, 1973.

On January 15, 1973 counsel for petitioners filed "A Supplemental Motion for Issuance of
Restraining Order and for Inclusion of Additional Respondents." The respondents sought to be
added were the Department of Local Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; and the National
Ratification Coordinating Committee and its chairman, Guillermo de Vega. In their supplemental
motion for the issuance of restraining order enjoining the original respondents, as well as the
additional respondents, and their deputies, subordinates and/or substitutes from collecting,
certifying, announcing and reporting to the President or other officials concerned, the Citizens'
Assembly referendum results that would be obtained in the voting held during the period comprised
between January 10 and January 15, 1973, particularly on the two questions: (1) "Do you approve of
the new Constitution?", and (2) "Do you still want a plebiscite to be called for the ratification of the
new Constitution?" Counsel for petitioners further alleged that for lack of material time the
appropriate amended petition to include the new respondents could not be completed because the
submission of the proposed Constitution to the Citizens' Assemblies was not made known to the
public until January 11, 1973, but nevertheless the new respondents could properly be included
because in their petition petitioners prayed "for the annulment not only of Presidential Decree No. 73
but also of any similar decree, proclamation, order or instruction" so that Presidential Decree Nos. 86
(and 86-A) in so far at least as they attempt to submit the proposed Constitution to a plebiscite by
the Citizens' Assemblies are properly in issue in the case, and those who enforce, implement and
carry out said Presidential decrees and the instructions incidental thereto clearly fall within the scope
of the petition. Moreover, counsel for petitioners alleges that in the original petition they prayed for
the issuance of a writ of preliminary injunction restraining not only the original respondents, but also
their agents from the performance of acts, implementing, or tending to implement, Presidential
Decree No. 73 or any other similar decree, order, instructions, or proclamation in relation to the
holding of the plebiscite in question on January 15, 1973, and that they had also prayed for such
other relief which may be just and equitable. Counsel for petitioners stressed the plea that unless the
petition is decided immediately and the respondents were restrained or enjoined from collecting,
certifying, reporting, or announcing to the President the result of the alleged voting of the so-called
Citizens' Assemblies irreparable damage would be caused to the Republic of the Philippines, to the
Filipino people and to the cause of freedom and democracy, because after the result of the
supposed voting on the two precise questions that they mentioned shall have been announced, a
conflict would arise between those who maintain that the 1935 Constitution is still in force, on the
one hand, and those who maintain that the old Constitution is superseded by the proposed
Constitution on the other hand, thereby creating confusion if not chaos; and that even the jurisdiction
of this Court would be subject to serious attacks because the advocates of the theory that the
proposed Constitution had been ratified by reason of the announcement of the results of the
proceedings of the Citizens Assemblies would argue that General Order No. 3, which would also be
deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, had placed
Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach and jurisdiction of this Court.

This Court required the Solicitor General to comment on the supplemental motion and set the said
motion for hearing on January 17, 1973.

On January 17, 1973 the urgent motion of January 12, 1973 and the supplemental motion for the
issuance of the restraining order and the inclusion of additional respondents were heard on oral
arguments by counsel for the petitioners and the Solicitor General. Towards the end of the hearing,
and while counsel for the petitioners was answering questions from Members of this Court, the Chief
Justice received a copy of Proclamation No. 1102 of the President of the Philippines "announcing
the ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional
Convention." The Chief Justice read in open court, for the record, Proclamation No. 1102. Said
Proclamation reads as follows:

PROCLAMATION NO. 1102

ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE

CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one

Constitutional Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios in municipalities and in

districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;

WHEREAS, responding to the clamor of the people and pursuant to Presidential

Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a plebiscite to be called to ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-
one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangay (Citizens Assemblies) should be considered as a vote
in a plebiscite;

WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the
New Constitution should already be deemed ratified by the Filipino people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

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

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
 Done in the City of Manila, this 17th day of January in the year of Our Lord, nineteen
hundred and seventy-three.

FERDI
NAND
E.
MARC
OS
Preside
nt of
the
Philippi
nes

By the President:

ALEJANDRO MELCHOR
Executive Secretary

And so, what the petitioners had feared, as expressed in their urgent motion for early decision and in
their supplemental motion to issue restraining order, etc., that the results of the voting in the Citizens'
Assemblies might be taken as a basis for proclaiming the ratification of the proposed Constitution,
had actually happened. And so, what the petitioners in all the ten cases now before Us — among
them civic leaders, newspapermen, Senators and Congressmen, Members of the 1971
Constitutional Convention, and professionals — had tried to prevent from happening, that is, the
proclamation of the ratification of the proposed constitution on the basis of the affirmative votes that
might be cast in the plebiscite that was set for January 15, 1973 pursuant to Presidential Decree No.
73, the legality of which decree was being questioned by petitioners, had happened.

The crucial question before this Court is whether or not Presidential Proclamation No. 1102
announcing the ratification of the proposed Constitution of 1972 is in accordance with the
Constitution and has the effect of making the proposed Constitution of 1972 effective and in force as
of January 17, 1973 when the proclamation was issued. This is, I believe, the vital question that this
Court is called upon to resolve, and it is for this reason that I believe that this case has not been
moot and academic. While it is true that the relief prayed for by the petitioners, that the original
respondents be enjoined from implementing Presidential Decree No. 73, cannot now be granted,
Proclamation No. 1102 nevertheless has the effect of consummating the ratification of the proposed
Constitution — the very event which the petitioners had precisely sought to prevent from happening
when they filed their petitions. Presidential Proclamation No. 1102 has a tremendous effect upon the
political, economic and social life of the people of this country. I believe, therefore, that this Court
should not indulge in the niceties of procedural technicalities and evade the task of declaring
whether or not the Constitution proposed by 1971 Convention has been validly ratified as announced
in said Proclamation No. 1102. This Court is called upon to give the people of this Republic the
proper orientation regarding the effect of said Proclamation No. 1102. That orientation will only come
about when this Highest Court of the land has rendered a ruling on whether or not said Proclamation
No. 1102 is valid.

I cannot agree with the view of some of my colleagues that this Court cannot make a ruling on the
question of whether or not Proclamation No. 1102 is valid, because the validity of said proclamation
is not the matter that is squarely presented to this Court for resolution by the petitions in these
cases. I believe, however, that this Court should not close its eyes to the fact that in the ten petitions
that are before this Court the uniform prayers of the petitioners are to enjoin the implementation of
Presidential Decree No. 73 and to nullify said decree — precisely in order to prevent the ratification
of the Constitution proposed by the 1971 Convention in a manner that is not in accordance with the
Constitution and the law. So much so that in G.R. No. L-35948 (Tan, et al. v. Comelec, et al.) the
petitioners, among others, prayed that judgment be rendered declaring" ... Presidential Decree No.
73 or any similar decree, proclamation, order or instruction unconstitutional, null and void and
making the writ of preliminary injunction permanent." It is not difficult to understand that the purpose
of the petitioners was to invalidate any and all orders, decrees and proclamations that are corollary
or related to Presidential Decree No. 73 which had for its main purpose to submit the Constitution
proposed by the 1971 Convention to a plebiscite on January 15, 1973 and thereby determine
whether the people approve or reject the proposed Constitution. As We have adverted to, the
objective of the petitioners was to prevent the ratification of the proposed constitution in a manner
that is offensive to the Constitution and the law. All orders, decrees, instructions, or proclamations
made after the issuance of Presidential Decree No. 73, which have for their purpose either to
supplement Presidential Decree No. 73 or to accomplish through other means or methods what
Presidential Decree No. 73 was issued for, are encompassed within the prayer of petitioners to
nullify "any similar decree, proclamation, order, or instruction". Presidential Decrees Nos. 86 and 86-
A are such "similar" decrees, because, as it turned out, Presidential Decree No. 86 provided for the
organization of the citizens' assemblies which became the forums where the question of whether to
ratify or to reject the proposed Constitution was submitted; and, as it turned out, Presidential Decree
No. 86-A provided for the very question which otherwise the voters would have been asked to
answer "Yes" or "No" in the plebiscite which had been provided for in Presidential Decree No. 73. In
other words, Presidential Decree No. 86 supplanted Presidential Decree No. 73 in so far as the latter
decree provided for the forum where the question was to be asked; while Presidential Decree No.
86-A supplanted Presidential Decree No. 73 in so far as the latter decree provided for the question
to be asked regarding the proposed Constitution. And finally because Presidential Proclamation No.
1102 has for its basis what was done pursuant to Presidential Decrees Nos. 86 and 86-A, it follows
that Proclamation No. 1102 is just the "proclamation" that the petitioners sought to nullify or
invalidate if issued.

I believe that the effects of Proclamation No. 1102 have an intimate bearing on the objectives of the
petitioners when they filed the instant petitions for prohibition, and so said proclamation has to be
considered along with all the issues raised by the petitioners in the cases at bar. More so, because
said Proclamation No. 1102 was read into the record by the Chief Justice of this Court during the
hearing of L-35948 (Tan vs. Comelec), in open court, on January 17, 1973. I believe that this Court
must not ignore Proclamation No. 1102 in relation to the matters and to the issues ventilated before
this Court. Proclamation No. 1102 was formally brought to the attention of this Court. It is my view
that this Court should not evade its duty of defining for the benefit of the people of this Republic the
legal and constitutional nature and effects of that proclamation. I, for one, as a humble member of
this Court, feel it my duty to say what I think, and believe, about Proclamation No. 1102. I do this not
because of any desire on my part to obstruct the workings of the agencies and instrumentalities of
our Government, or to foster among the people in our country an attitude of disrespect or disloyalty
towards the constituted authorities that presently run the affairs of our Government. I am only doing
what I believe is my sworn duty to perform.

The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:

Section 1. The Congress in joint session assembled by a vote of three fourths of all
the Members of the Senate and of the House of Representatives voting separately,
may propose amendments to the Constitution or call a convention for that purpose.
Such amendments shall be valid as part of this Constitution when approved by a
 majority of the votes cast at an election at which the amendments are submitted to
the people for their ratification.

It is in consonance with the above-quoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines passed Resolution No. 2 calling a convention to propose
amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:

Section 7. The amendments proposed by the Convention shall be valid and

considered part of the Constitution when approved by a majority of the votes cast in
an election which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.

It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention there was a clear mandate that the amendment proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for their ratification
as provided in the Constitution.

This Court, in the case of Tolentino vs. Commission on Elections, L-35140, October 16, 1971 (41
SCRA 715), speaking through Mr. Justice Barredo, said:

The Constitutional Convention of 1971, as any other convention of the same

nature, owes its existence and 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 coup d' etat. As to such kind of conventions, it is absolutely true that
the convention is completely without restraint and omnipotent all wise, and it 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 ...

xxx xxx xxx

As to matters not related to its internal operation and the performance of its assigned
mission to propose amendments to the Constitution, the Convention and its officers
and members are all subject to all the provisions of the existing Constitution. Now we
hold that even as to its latter task of proposing amendments to the Constitution, it is
subject to the provisions of Section 1 of Article XV.

In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has thereby come into effect.

It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 was not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.

I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.

It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard, or, in violation, of the provisions of Section 1 of Article V of
the 1935 Constitution.

Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plesbiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.

The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.

An election is the embodiment of the popular will, the expression of the sovereign
power of the people. In common parlance an election is the act of casting and
receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas,
24 Phil. 632, 637).

Election" implies a choice by an electoral body at the time and substantially in the
manner and with the safeguards provided by law with respect to some question or
issue. (Leffel v. Brown, Com. Pl., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at
footnote 6.5).
 ... the statutory method whereby qualified voters or electors pass on various public
matters submitted to them — the election of officers, national, state, county, township
— the passing on various other questions submitted for their determination (29
C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5,
241 Iowa 358).

Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W.

2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234).

The right to vote may be exercised only on compliance with such statutory
requirements as have been set up by the legislature, (People ex rel. Rago v. Lipsky
63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d
169 in 29 C.J.S. 38). (Emphasis supplied)

In this connection I herein quote the pertinent provisions of the Election Code of 1971:

Sec. 2. Applicability of this Act. — All elections of Public officers except barrio
officials and plebiscitesshall be conducted in the manner provided by this Code.

Sec. 99. Necessity of registration to be entitled to vote. — In order that a qualified

voter may vote in any regular or special election or in any plebiscite, he must be
registered in the permanent list of voters for the city, municipality or municipal district
in which he resides: Provided, That no person shall register more than once without
first applying for cancellation of his previous registration. (Emphasis supplied). 3)
Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388).

It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the
1935 Constitution the age requirement to be a qualified voter is 21 years or over.

But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which would
mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people and asking them to raise their hands
in answer to the question of whether they vote for or against a proposed Constitution. The election
processes as provided by law should be strictly observed in determining the will of the sovereign
people in a democracy. In our Republic the will of the people must be expressed through the ballot in
a manner that is provided by law.

It is said that in a democracy the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands of
a well-ordered society require. The rule of law must prevail even over the apparent will of the
majority of the people, if that will had not been expressed, or obtained, in accordance with the law.
Under the rule of law public questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or in the ratification of an
amendment to the Constitution.
The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified or not:

When it is said that "the people" have the right to alter or amend the constitution, it
must not be understood that this term necessarily includes all the inhabitants of the
state. Since the question of the adoption or rejection of a proposed new constitution
or constitutional amendment must be answered by a vote, the determination of it
rests with those who, by the existing constitution, are accorded the right of suffrage,
But the qualified electors must be understood in this, as in many other cases, as
representing those who have not the right to participate in the ballot. If a constitution
should be abrogated, and a new one adopted, by the whole mass of people in a
state, acting through representatives not chosen by the "people" in the political sense
of the term, but by the general body of the populace, the movement would be extra-
legal. (Black's Constitutional Law, Second Edition, pp. 47-48).

The theory of our political system is that the ultimate sovereignty is in the people,
from whom springs all legitimate authority. The people of the Union created a
national constitution, and conferred upon it powers of sovereignty over certain
subjects, and the people of each State created a State government, to exercise the
remaining powers of sovereignty so far as they were disposed to allow them to be
exercised at all. By the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and neither the officers
of the State, nor the whole people as an aggregate body, are at liberty to take action
in opposition to this fundamental law. (Cooley's Constitutional Limitations, 8th
Edition, Vol. I, p, 81 cited in Graham v. Jones, 3 So. 2d. 761, 782).

The theory that a favorable vote by the electorate, however unanimous, on a

proposal to amend a constitution, may cure, render innocous, all or any antecedent
failures to observe commands of that Constitution in respect of the formulation or
submission of proposed amendments thereto, does not prevail in Alabama, where
the doctrine of the stated theory was denied, in obvious effect, by the pronouncement
60 years ago of broad, wholesome constitutional principles in Collier v.
Frierson supra, as quoted in the original opinion, ante. The people themselves are
bound by the Constitution; and, being so bound, are powerless, whatever their
numbers, to change or thwart its mandates, except through the peaceful means of a
constitutional convention, or of amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution. The Constitution
may be set aside by revolution, but it can only be amended in the way it provides,"
said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103.
Johnson v. Craft, et al., 87 So. 375, 385, 387 On Rehearing).

The fact that a majority voted for the amendment, unless the vote was taken as
provided by the Constitution, is not sufficient to make a change in that instrument.
Whether a proposed amendment has been legally adopted is a judicial question, for
the court must uphold and enforce the Constitution as written until it is amended in
the way which it provides for. Wood v. Tooker 15 Mont. 8, 37 Pac. 840, 25 L.R.A.
560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving
Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac.
1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99,
104).
 Provisions of a constitution regulating its own amendment, ... are not merely
directory, but are mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment. These provisions
are as binding on the people as on the legislature, and the former are powerless by
vote of acceptance to give legal sanction to an amendment the submission of which
was made in disregard of the limitations contained in the constitution. (16 C.J.S. 35-
36 cited in Graham v. Jones, 3 So. 2d 761, 782).

It is said that chaos and confusion in the governmental affairs of the State will result
from the Court's action in declaring the proposed constitutional amendment void.
This statement is grossly and manifestly inaccurate. If confusion and chaos should
ensue, it will not be due to the action of the Court but will be the result of the failure of
the drafters of the joint resolution to observe, follow and obey the plain essential
provisions of the Constitution. Furthermore, to say that, unless the Court disregards
its sworn duty to enforce the Constitution, chaos and confusion will result, is an
inherently weak argument in favor of the alleged constitutionality of the proposed
amendment. It is obvious that, if the Court were to countenance the violations of the
sacramental provisions of the Constitution, those who would thereafter desire to
violate it and disregard its clear mandatory provisions would resort to the scheme of
involving and confusing the affairs, of the State and then simply tell the Court that it
was powerless to exercise one of its primary functions by rendering the proper
decree to make the Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793-
794).

In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not, complied with. In the case of Monsale v.
Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the filing of the same. However, on October 10,
1947, after the period for the filing of certificates of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by
withdrawing the withdrawal of his certificate of candidacy. The Commission on Elections, on
November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless
proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes
cast for Monsale upon the ground that the votes cast for him were stray votes, because he was
considered as having no certificate of candidacy. On the other hand, the boards of inspectors
credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the
election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the
decision of the lower court. This Court declared that because Monsale withdrew his certificate of
candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this court declared Nico the winner in
spite of the fact that Monsale had obtained more votes than he.

We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an election.

And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must
be upheld.

My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice, because of the existence of martial law in our country. The same
ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 13 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open
debate on the proposed constitution, be suspended in the meantime."5 It is, therefore, my view that
voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why
the results of the voting in the barangays should not be made the basis for the proclamation of the
ratification of the proposed Constitution.

It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it
is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered as not yet ratified by the people of this Republic,
and so it should not be given force and effect.

During the deliberation of these cases by this Court, a suggestion was made that because of the
transcendental effect of Proclamation No. 1102 on the country, the petitioners in these cases,
specially the petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a period of ten
days to move in the premises, considering that the issuance of Proclamation No. 1102 came as a
surprise to the petitioners and they had no opportunity to define their stand on said Proclamation in
relation to their petitions. The majority of the Court, however, were not in favor of the idea. I
expressed myself, and I so express now, that I am in favor of granting the petitioners the opportunity
to articulate their stand regarding Proclamation No. 1102 so that the objection of some members of
this Court to pass upon the validity of said proclamation upon the ground that it is not in issue in
these cases may be met, and so that the validity of Proclamation No. 1102, and the question of
whether or not the proposed 1972 Constitution has been validly ratified, may be resolved by this
Court once and for all.

At any rate, whether the petitioners are granted opportunity to define their stand on Proclamation No.
1102, or not, I humbly submit this opinion for whatever if may be worth, with the hope that the
officials and the citizens of this country will take note of it, and ponder over it. I am only doing my
duty according to the light that God has given me.

Separate Opinions

MAKALINTAL and CASTRO, JJ., concurring:

The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2),
and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971
Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any
similar decree, proclamation, order or instruction unconstitutional, null and void, ..." Basically,
although couched in different language, it is the same relief sought in the other petitions.

Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the
interim National Assembly, which includes, among others, "those Delegates to the (1971)
Constitutional Convention who have opted to serve therein by voting affirmatively for this Article."
Section 3 (par. 2) provides that "(A)ll proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part of the law of the land, and
shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly." And Section 12 states in part: "All treaties,
executive agreements, and contracts entered into by the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations, are hereby
recognized as legal, valid, and binding ..."

Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on
January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same
time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said
plebiscite from being held that these petitions were filed.

The specific grounds alleged in the petition in G.R. No. L-35948 to support the relief prayed for
which are fairly representative of the others, read as follows:

I. The President of the Philippines has no power to call a plebiscite for the ratification
or rejection of the 1972 Draft; neither has he the power to appropriate funds for the
holding of the said plebiscite.

II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation
of power. And it contains provisions which were beyond the power of the convention
to enact. All these have made the 1972 Draft unfit for "proper submission" to the
people.

III. The period of time between November 30, 1972 when the 1972 Draft was
approved, and January 15, 1973, the date the plebiscite will be held, is too
inadequate for the people to be informed of the contents of the 1972 Draft, and to
study and discuss them so that they could thereafter intelligently cast their vote.

Towards the end of December 1972 it was announced in the newspapers that the President had
postponed the plebiscite to a date to be fixed later, although tentatively February 19 and March 5,
1973 were mentioned. The announcement was made officially in General Order No. 20, dated
January 7, 1973. Then on January 17, 1973 the President issued Proclamation No 1102, certifying
that the proposed Constitution had been ratified by the Citizens Assemblies created under
Presidential Decree No. 86, issued on December 31, 1972, and that therefore it had become
effective.

In view of the foregoing developments which supervened after the petitions herein and the answers
thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III
abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January
15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also
premature. But of course whether the petition is moot or premature makes no material difference as
far as these cases are concerned, since the announced ratification of the proposed Constitution by
the Citizens Assemblies has made it unlikely that any plebiscite will be held.

With respect to ground No. II we are of the opinion that the question of whether or not the proposals
referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to
the people for ratification has likewise become moot because of the President's Proclamation No.
1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid
it should be not as mere proposals by the Convention but already as provisions of the Constitution,
and certainly not in the present cases in the state in which they have been submitted for decision.

There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral
argument on his urgent motion for early decision to question the validity of Proclamation No. 1102.
This question is not within the purview of the petition and involves issues which have neither been
raised nor argued herein, having arisen in a new and different setting and frame of reference, and
hence may only be ventilated, if at all, in an appropriate case or at least through appropriate
pleadings so that the parties may be duly heard.

We therefore vote to dismiss the petitions.

TEEHANKEE, J., concurring:

Without prejudice to the filing of a separate extended opinion, I concur with the Chief Justice in his
separate opinion and add the following brief comments.

The Solicitor General's Office on behalf of respondents manifested as of its last comment of January
16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No.
73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite
scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of
General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos."

On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a
premise thereof, inter alia, that "since the referendum results show that more than ninety-five (95)
per cent of the members of the Barangays (Citizens Assemblies)1 are in favor of the New
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people."2

Under the circumstances of record from which it appears that no election (or plebiscite) for the
purpose has been called and held,3 it would be premature for now to hold that the averred ratification
of the Constitution proposed by the 1971 Constitutional Convention has met the requirements of
Article XV of the Constitution that "(S)uch 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" or of section 16 of Article XVII of the proposed
Constitution itself that "(T)his Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose."

With the result reached by the Court, and the rendering moot of the issues raised against the validity
of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave
constitutional question in its two aspects (a) whether the Constitutional Convention may assume the
power to call the plebiscite (a power historically exercised by Congress) and to appropriate funds
therefor against the Constitutional mandate lodging such power in Congress4 and (b) whether the
Constitutional Convention may delegate such assumed power to the President — absent any
showing of willful default or incapacity on the part of Congress to discharge it.
By the same token, it is unnecessary to resolve the equally grave question of whether certain
matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g. sections
2 and 15 of Article XVII (Transitory Provisions) providing for the delegates of said Convention to
constitute the majority of an interim National Assembly and empowering such Assembly "upon
special call by the interim Prime Minister ..., by a majority vote of all its members, (to) propose
amendments to this Constitution (which) shall take effect when ratified in accordance with Article
Sixteen hereof", which would appear to be in violation of the accepted principles governing
constitutional conventions that they become functus officio upon completion of their function to
formulate and adopt amendments to the Constitution5 for the people's ratification or rejection in the
manner ordained in the Constitution6 — since such convention controlled interim National Assembly
may continue proposing Constitutional amendments by mere majority vote in contrast to
the regular national assembly which would require "a vote of three-fourths of all its members" to
propose such amendments.7

ANTONIO, J., concurring:

The historical events of the last few days have rendered the petitions (G.R. Nos. L-35925, L-35929,
L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979), including the
supplemental petition moot and should be dismissed.

Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of
the Constitutional Convention to propose amendments to the Constitution is its authority to order an
election at which such amendments are to be submitted to the people for ratification and, within the
narrow range implied as necessary for the business of submitting the amendments to the people, the
capacity to appropriate money for the expenses necessary to make such submittal effective.
Independently therefore of the question, whether or not the President may legislate during martial
law, it was certainly within the authority of the President to issue such measures, acting as agent for
and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and
appropriate money for said purpose.

The opinion that the President, as agent of the Convention, could device other forms of election to
determine the will of the majority of the people on the ratification of the proposed Constitution,
establishes a principle that is, not entirely devoid of precedent. The present Constitution of the
United States was ratified in a manner not in accord with the first Constitution of the United States,
which was the Articles of Confederation. The violation was deliberate, but Madison, however
defended the method provided for the adoption of the new Constitution by saying that it was a case
"of absolute necessity" which forced the framers of the new Constitution to resort "to the great
principle of self-preservation; to the transcendental law of nature and of nature's God, which
declares that the safety and happiness of society are the objects at which all political institutions aim,
and to which all such institutions must be sacrificed." While I agree that this precedent is never one
that would justify governmental organs in ignoring constitutional restraints, the fact is the people
themselves had already acted by adopting the procedure devised in the expression of their
sovereign will.

To the contention of one of the petitioners, that the draft of the Constitution contains provisions
beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that
there is nothing that can legally prevent a convention from actually revising the entire Constitution
for, in the final analysis, it is the approval of the people that gives validity to any proposal of
amendment or revision.
I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant
the presumption that the results of the plebiscite of ratification is not a genuine and free expression
of the popular will.

It poses a question of fact which, in the absence of any judicially discoverable and manageable
standards, or where the access to relevant information is insufficient to assure the correct
determination of the issue, I do not feel that this Court is competent to act.

If the ratification of the new Constitution and the new government erected thereon, is not what it is
represented to be, the expression of the will of the majority or the people are dissatisfied, they have
ample remedy. The instrument itself provides amendment and change. For the only and proper way
in which it should be remedied, is the people acting as a body politic. These questions relate to
matters not to be settled on strict legal principles. For the new Constitution has been promulgated
and great interests have already arisen under it. The political organ in the government has
recognized it and has commenced the implementation of its provisions. Under such circumstances
the Court should therefore refrain from precipitating impossible situations which might otherwise rip
the delicate social and political fabric.

The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In
the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the
historical facts that culminated in the national referendum. The people wanted a revolutionary
change. They were aware of the manifold problems of the nation — its poverty, corruption, injustice,
subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few
months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains
of the commonweal may be conserved and further enlarged. In the ambience of such a historical
setting, it would have been presumptuous to assume that the qualified voters in the reportedly more
than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear.
Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the
people themselves.

In all other respects, the opinion of Justice Barredo, merits my concurrence.

ESGUERRA, J., concurring:

I vote to deny all petitions seeking to prohibit the holding of the plebiscite on January 15, 1973, on
the Constitution of November 30, 1972, as provided for in Presidential Decree No. 73 of December
1, 1972. Specifically, I vote to deny the supplemental petition in G.R. No. L-35948 seeking to restrain
the Citizens Assemblies' referendum in connection with that ratification of said Constitution.

My reasons are simple and need no elaborate and lengthy discussion.

1. In the first place, these cases have been moot and academic as the holding of the plebiscite
scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated
January 7, 1973. Consequently, there is nothing more to prohibit or restrain.

2. In the second place, the supplemental petition in G.R. No. L-35948 to restrain the respondents,
including three additional parties, namely Secretary Jose Rono as head of the Department of Local
Governments; Secretary Conrado Estrella, as head of the Department of Agrarian Reforms and
Secretary Guillermo de Vega, as Chairman of the National Ratification Coordinating Committee, who
were not duly served with summons and have never been heard, has been rendered futile as the
Citizens Assemblies have expressed their decisions to ratify the 1972 Constitution and said officers
have reported to the President and on the basis thereof he has announced the ratification of said
Constitution by Proclamation No. 1102, dated January 17, 1973, effective 12: 00 o'clock noon of said
date. Hence there is also nothing more to restrain or prohibit as the acts sought to be stopped have
been fully accomplished.

I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of
any evidence to overthrow the veracity of the facts therein related, there being no case formally filed
with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for
the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed
Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is
absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do
so would be simply tiding rough shod over the well-beaten road of due process of law which
basically requires notice and full and fair hearing.

Without any competent evidence I do not pretend to know more about the circumstances attending
the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume
that what the proclamation says on its face is true and until overcome by satisfactory evidence, of
which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was
not held accordingly.

At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be
resolved without raising the legality of the Government under which we are now operating as of
January 17, 1973. Hence We would be confronted with a political question which is beyond the
jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on
November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the
manner of its ratification has been innocuous. Having been invested with full force and effect by the
approval of an overwhelming majority of the people, to mount an attack against it now would be
nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique
literary character and I prefer to take things in the light of the stark realities of the present. I have
always adhered to the idea that the practical approach to any question yields the happiest solution,
instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures.

FERNANDO, J., concurring and dissenting:

While I am in agreement with the resolution of the Court dismissing the petitions for their being moot
and academic, I feel that a brief separate opinion expressing my views on certain legal issues would
not be amiss, considering the transcendental character of the suits before us. Indisputably, they
involve the crucial role assumed by the Executive in the proposed submission of the new
Constitution, perhaps unavoidably thrust upon him in view of the declaration of martial law. It is
reassuring that there is a reiteration of the principle that the amending process, both as to proposal
and ratification, raises a judicial question. Notwithstanding the vigor and plausibility with which the
Solicitor-General stressed what for him is the political nature of the controversy, with considerable
support from authorities on constitutional law partial to the judicial restraint approach, it would be, for
me, a plain abdication of the trust reposed in this Court, if it would rule itself as devoid of authority to
inquire into the validity of the steps taken towards the ratification of the proposed amendments. The
most that I can concede is that where the effect of the nullification sought is to prevent the sovereign
people from expressing their will, the utmost caution and circumspection should be exercised.

Now, as to the merits of the issues that would have called for resolution, were it not for the matter
becoming moot and academic. While not squarely raised, the question of whether or not a
constitutional convention could go on meeting with martial law in force has a prejudicial aspect.
Following the ruling in Duncan v. Kahanamoku1 that Legislature and courts continue to function even
under such period, being not merely cherished governmental institutions but indispensable to the
operation of government, there is no doubt in my mind that the same principle should likewise apply
to a constituent body. To the contention pressed by Senator Tanada, as counsel, in Tan v.
Commission on Elections, that the proposed Constitution contains provisions beyond the power of
the Constitutional Convention to submit for ratification, it seems to me a sufficient answer that once
convened, the area open for deliberation to a Constitutional Convention and thereafter to be
embodied in proposed amendments if approved by the majority, is practically limitless.2 In that
sense, it can be truly stated that the Convention can propose anything but conclude nothing. As was
intimated by Justice Makasiar, speaking for the Court in Del Rosario v. Comelec,3"whether the
Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the
present Constitution and propose an entirely new Constitution based on an ideology foreign to the
democratic system, is of no moment; because the same will be submitted to the people for
ratification. Once ratified by the sovereign people, there can be no debate about the validity of the
new Constitution."4 Once its work of drafting has been completed, it could itself direct the submission
to the people for ratification as contemplated in Article XV of the Constitution. Here it did not do so.
With Congress not being in session, could the President, by the decree under question, call for such
a plebiscite? Under such circumstances, a negative answer certainly could result in the work of the
Convention being rendered nugatory. The view has been repeatedly expressed in many American
state court decisions that to avoid such undesirable consequence, the task of submission becomes
ministerial, with the political branches devoid of any discretion as to the holding of an election for that
purpose.5 Nor is the appropriation by him of the amount necessary to be considered as offensive to
the Constitution. If it were done by him in his capacity as President, such an objection would indeed
have been formidable, not to say insurmountable.6 If the appropriation were made in his capacity as
agent of the Convention to assure that there be the submission to the people, then such an
argument loses force. The Convention itself could have done so.7 It is understandable why it should
be thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could
conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of
being rendered financially distraught. The President then, if performing his role as its agent, could be
held as not devoid of such competence. That brings me to the argument as to the absence of proper
submission, developed with the customary learning and persuasiveness by Senators Tanada and
Salonga. With all due recognition of their forensic skill, I prefer to rely on what, for me, is the correct
principle announced in the opinion of the Chief Justice in Gonzales v. Commission on Elections:8 "A
considerable portion of the people may not know how over 160 of the proposed maximum of
representative districts are actually apportioned by R.B.H. No. 1 among the provinces in the
Philippines. It is not improbable, however, that they are not interested in the details of the
apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear
vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves
sufficiently by reading the copies of the proposed amendments posted in public places, the copies
kept in the polling places and the text of contested resolutions, as printed in full on the back of the
ballots they will use. It is, likewise, conceivable that as many people, if not more, may fail to realize
or envisage the effect of R.B.H. No. 3 upon the work of the Constitutional Convention or upon the
future of our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint,
the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that
R.B.H. No. 3 permits Congressmen to retain their seats as legislators, even if they should run for
and assume the functions of delegates to the Convention. We are impressed by the factors
considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such
factors affect the wisdom of Republic Act No. 4913 and that of R.B.H. Nos. 1 and
3, not the authority of Congress to approve the same. The system of checks and balances
underlying the judicial power to strike down acts of the Executive or of Congress transcending the
confines set forth in the fundamental laws is not in derogation of the principle of separation of
powers, pursuant to which each department is supreme within its own sphere. The determination of
the conditions under which the proposed amendments shall be submitted to the people is
concededly a matter which falls within the legislative sphere. We do not believe it has been
satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No.
4913."9

Nonetheless, were it not for the fact that the matter had become moot and academic, I am for
granting the petitions in view of what, for me, is the repugnancy between an election contemplated
under Article XV of the Constitution in herein the voters can freely register their will, whether it be for
approval or disapproval, and the existence of martial law, with its connotation that dissent may be
fraught with unpleasant consequences. While it is to be admitted that the Administration has done its
best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede
that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident
to such a regime has been reduced to a minimum. I fail to see then the existence of that
indispensable condition of freedom that would validate the ratification process as contemplated by
the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are
fundamental concepts of judicial review precludes it this state the expression of any opinion. It
would, at the very least, be premature. 10

BARREDO, J., concurring and dissenting:

With full consciousness of the transcendental consequences of the action the Court is taking in
these cases, not only upon me personally and as a member of the Supreme Court but upon the
Court itself as the guardian of the Constitution, which all its members have solemnly sworn in the
name of God to uphold and defend, and after long and serious consideration of all aspects and
angles of the issues submitted for resolution by the parties, I have come to the sincere conviction
that the petitions herein should be dismissed, including the supplemental petition filed by petitioners
in G.R. No. L-35948, with the consequent denial of the motion for the issuance of a writ of
preliminary injunction or a temporary restraining order enjoining in effect any act which would imply
giving force and effect to the 1972 Constitution which President Ferdinand E. Marcos proclaimed as
ratified in Proclamation No. 1102 as of twelve o'clock noon on January 17, 1973. Without prejudice
to a more extended opinion later, my reasons for this conclusion are as follows:

As of today, two matters present themselves for Our immediate resolution, namely, (1) the petitions
in all of these cases praying for a writ of prohibition against the implementation of Presidential
Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the
ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being
January 15, 1973, and (2) the supplemental petition, with prayer for the issuance of a writ of
preliminary injunction or a restraining order, in G.R. No. L-35948 to enjoin whatever ratification of the
said Constitution would be proposed by the Citizens Assemblies, established under Presidential
Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to
such ratification, should it be proclaimed, which, by the way, everybody knows was already done at
about 11:00 o'clock A.M. on January 17, 1973.

As to No. (1), I vote to dismiss the original petitions in all these cases for the simple reason that the
alleged grounds thereof are either untenable or have been premature, if not somehow moot and
academic, at least, meanwhile that the plebiscite had not been reset.1

(a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a
justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v.
Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this pose.

(b) On the other hand, I am of the considered view that it is not within the competence of this Court
to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the
Convention. The Convention was called for the purpose of proposing amendments to the
Constitution, and like any Constitutional Convention it was completely and absolutely free to make
any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires
proposals advanced by petitioners is to me without sufficient legal basis.

(c) Much less can I accept the view that the Convention's task was limited to proposing specific
amendments to become either as new parts of the existing Constitution or as replacements of
corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in
this regard, I feel safe in saying that when the people elected the delegates to the Convention and
when the delegates themselves were campaigning such limitation of the scope of their function and
objective was not in their minds. Withal, considering the number and nature of the proposals already
being publicly discussed before and after said election, to follow petitioners' suggestion would have
produced confusion and probably insurmountable difficulties even in the framing and phrasing alone
of the amendments so that they may easily and clearly jibe with the other parts of the existing
Constitution.

(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No.
73, I maintain that independently of the issue of whether or not the President may legislate during
martial law relative to matters not connected with the requirements of suppressing the armed
insurgency and the maintenance of peace and order, it was within the prerogative of the President to
issue said decree, considering that in doing so he merely acted as agent for and on behalf of the
Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I
individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for
the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent
and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972,
delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules
requiring the laying down of standards in the delegation of legislative functions binding Congress do
not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of
legislative authority than Congress in matters related to the accomplishment of its objectives, it
follows that Presidential Decree No. 73 was validly issued.

(e) All the other objections to said decree were rendered premature, if not somehow moot and
academic for the time being, because under General Order No. 20, dated January 7, 1973, the
President postponed the plebiscite until further notice. Such being the case, nobody could positively
say that the President would not allow Congress to pass a plebiscite law or that he would not lift
martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that
are supposed to be ratified together with the Constitution itself would not be published, for the proper
information of all concerned before the next date to be fixed for the plebiscite. In other words, no one
could say that appropriate steps would not be taken to meet the objections alleged in the petitions
before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue
the factual setting whereof may still be materially altered.

(f) On whether or not the holding of the plebiscite during martial law would materially affect proper
submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents
that this is a question of fact which cannot be pre-determined and that it would, therefore, be the
burden of the petitioners to show by evidence that such freedom had been actually and substantially
impaired. When one recalls that measures were taken by the President precisely to provide the
widest opportunity for free debate and voting, consistent with the nature and purpose of the
plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him,
which measures he had to withdraw only when in his judgment he deemed it to be so required by
public safety, it does not seem altogether logical to assume that the existence of martial law per se
deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use
an apt expression, does not carry with it necessarily all the implications thereof as these are known
in other lands and in the recorded precedents.
Coming now to No. (2), it is evident that under the theory above-referred to that as agent of the
Convention, the President could devise other forms of plebiscite to determine the will of the majority
of the people vis-a-vis the ratification of the proposed Constitution, I believe that the establishment of
the Citizens' Assemblies as a mode of such plebiscite cannot be said to be clearly beyond the
contemplation of Article XV of the Constitution of 1935. It must be observed, however, that under
Article X of the same Constitution, it is the Commission on Elections that is supposed to "have
exclusive charge of the enforcement and administration of all laws relative to the conduct of
elections ..." and this function cannot be removed from the Commission whether by Congress or by
the President.2This constitutional point seems to have been overlooked in the proceedings in the
Assemblies, since it does not appear from any of the official documents relative thereto that the
same have been undertaken or held under the charge of the Commission.

Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact,
the answering of the questions and the canvassing and reporting of the referendum in the
Assemblies throughout the country were done exactly in the manner and form that they should have
been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise
stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By
this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis
of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted,
which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many
places, judged on the basis of the requirements of the prevailing election laws.

On the other hand, in spite of these considerations, I do not find myself in a position to deny the
factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval
of the proposed Constitution and would consider the same as already ratified by them. I understand
that this number was determined on the basis of sworn reports of the respective heads of the
Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting
that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes
to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it
would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in
dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading
to the issuance of said proclamation may be deemed already cured by the apparent will of the
people however imperfectly, under legal and technical standards, the same has been expressed. To
grant the prayer of petitioners now would be tantamount to defying the very sovereign people by
whom and for whom the Constitution has been ordained, absent any demonstrated facts showing
that they prefer the status quo, which the Convention was precisely called to change meaningfully, to
the wide-range reforms everybody can see are being effected in practically all levels of the
government and all sectors of society. Withal, to issue any such injunctive writ at this stage of
denouncement of national events is to court consequences too horrible to imagine.

To the possible stricture that persons less than twenty-one years of age were allowed to participate
and vote in said Assemblies, my reaction is that I am not sure that Article V of the 1935 Constitution,
viewed in the light of the perceptible universal drift towards the enfranchisement of the youth, may
not be construed as permitting legislative enlargement of the democratic base of government
authority, since the said Article does not say that those thereby qualified are the only ones who can
vote - the language being simply that "suffrage may be exercised by male citizens of the Philippines
not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the municipality wherein they
propose to vote for at least six months preceding the election. ...," which, to me, strictly speaking,
only guarantees the right of suffrage to those enumerated but does not deny to the legislature the
power to include others who in its wisdom it believes should also enjoy such right. In any event, it is
elementary under our election law and jurisprudence that should it appear that disqualified persons
have succeeded in voting in an election, such election is not thereby necessarily rendered wholly
illegal, but the votes of such persons are only correspondingly deducted after being duly identified.
Accordingly, on the premise that the inclusion of those below 21 is illegal, their votes may be
deducted from the 14,000,000 or so aforementioned, and I am certain no one will deny that the
remainder would still be substantially sufficient to constitute a recognizable mandate of the people,
for under normal circumstances which must be presumed, and making the most liberal estimate, the
votes of the under aged voters among them could not have been more than one-third of said
number. Indeed, at the most, if this point had been considered before the issuance of Proclamation
1102, an injunction might have issued to restrain the under aged persons from participating in the
referendum, but now that the result thereof is a fait accompli, I cannot see how such a possible flaw
can be of any material consequence.

As may be noted, I have taken it upon myself to rule on the legal issues surrounding Proclamation
1102. Indeed, I feel very strongly that, as a member of the Supreme Court, it is my duty to our
people to enlighten them as to said issues. The eyes of the whole country have been pinned on Us
since the Convention approved the draft of the Constitution in question on November 30, 1972, and
the President called, on December 1, 1972, thru Presidential Decree No. 73, for a plebiscite
scheduled to be held on January 15, 1973, for its ratification. Concerned citizens purporting to speak
for the people have precisely come to the Court challenging the legality of the procedure thus
pursued as not being in consonance with the amending process specified in the 1935 Constitution
and praying that the Court enjoin the continued adoption of said procedure. Everybody knows that
they came to Us with the conviction that the Court would not hesitate to play its role as the final
authority designated by the Constitution itself to interpret and construe its provisions.

Accordingly, We gave due course to their petitions, and for two days, December 18 and 19, We
heard brilliant and learned counsel of both sides argue eloquently, even with obvious patriotic fervor
but in view of the circumstances related in the separate opinion of the Chief Justice, We were unable
to decide the cases even as late as January 13, 1973. Petitioners then came with motions urgently
seeking an early decision, and soon after, or, on January 15, 1973, petitioners in G.R. No. L-35948
filed a supplemental petition relative to the latest developments involving the creation of Citizens
Assemblies and the persistent reports indicating almost to a certainty that a proclamation would be
issued doing away with the usual plebiscite procedure and already proclaiming the proposed
Constitution as ratified and in force, on the basis alone of the favorable result of a referendum in said
Assemblies. Their main prayer was for Us to issue a writ of prohibition against the submission and
approval of the reports of the results of said referendum. We immediately required the respondents
to answer the supplemental petition not later than January 16 and set the case for hearing on
January 17 at 9:30 o'clock in the morning.

In closing his arguments before the Court that fateful morning, Senator Lorenzo Tanada, the
tenacious counsel for petitioners, pleaded earnestly, even after the Chief Justice had read to him in
open session the text of Proclamation 1102 which had just been delivered by the Secretary of
Justice, that the Court rule squarely on the issues petitioners have raised. He told Us that it is
secondary whether Our judgment should be favorable or unfavorable to petitioners, what is most
important is for the people to know whether or not the provisions of the Constitution have been
observed.

Indeed, no graver responsibility rests on the shoulders of the Court. And as I see it, We cannot shirk
that responsibility by alleging technical excuses which I sincerely believe are at best of controversial
tenability.

I cannot share the view that the validity and constitutionality of Proclamation 1102 have not been
submitted to Us for resolution in these proceedings. I maintain that for all intents and purposes, the
supplemental motion of Senator Tanada of January 15 placed those transcendental issues before
Us. Not only in his pleading but more so in his oral argument, Senator Tanada, with all the vigor of
his mind and the sincere patriotism of his heart, contended that with the creation of the Citizens
Assemblies and the referendum being conducted therein, and particularly in view of the two
questions to be answered, namely, "Do you approve of the proposed constitution?" and "Do you
want the plebiscite to be held?", there was no doubt that Article XV of the Constitution was being
bypassed and that this Court was being "short-circuited." In terms that could not have been plainer,
he pointed to the impending probability of the issuance of a proclamation of the nature of
Proclamation 1102, and he prayed eloquently, that We should act without loss of time to stop the
purported reports of the referendum so as to remove the basis for such feared eventuality. So much
so, that after the Chief Justice read the proclamation to him, he dramatically exclaimed, "I have been
confirmed." Others would have said, "Consummatum est!"

Under these circumstances, I cannot see how it can be held that We can refrain from ruling on the
legal and constitutional significance of Proclamation 1102. At the very least, the present state of the
case of Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon Us the ineludible
obligation to rule whether or not We should have enjoined the submission of the reports of the
Assemblies, as demanded by petitioners, it being evident that as Senator Tanada contended said
reports were to be utilized as basis for the issuance of a proclamation declaring the proposed
Constitution as ratified and already in force. In similar past cases too numerous to cite, this Court
and all courts in the country, I dare say, have always considered the consummation of a threatened
act, after the petition to enjoin it has been submitted to the court's jurisdiction, as fit subject for its
disposition, within the same proceedings, to the extent that the courts even issue mandatory
injunctions, in appropriate cases, for the respondents to undo what has already been done without
having to hold any further hearing. It is claimed that the parties must be fully heard — but have we
not heard enough from them? Has not Senator Tanada presented all his arguments in support of his
supplemental petition? And if he has not, is it the fault of the Court? Is it fair to all concerned that
such possible omission be considered as a ground for Our withholding Our judgment on what under
the law and the rules is already properly before Us for resolution? Truth to tell, I cannot imagine a
fuller ventilation of the cause of any other petitioner who has come to this Court than petitioners in
G.R. No. L-35948. Rarely has the Court held hearings for days and more unusually has it given any
counsel almost unlimited time to speak, but these We have done in these cases. Can any party ask
for more? If at all, only the respondents have not adequately presented their side insofar as the
supplemental petition is concerned, but, again, it cannot be said that they have not had the
opportunity to do so. The Acting Solicitor General has unqualifiedly filed his answer on behalf of all
the respondents, and to me, his attempt to impress the Court that the new respondents have not
been summoned and that the subject petition is premised on probabilities and conjectures is of no
moment, considering the grave importance of the issues and the urgent necessity of disposing them
expeditiously and without unnecessary loss of fateful time. Of course, I respect the reasons of my
colleagues who cannot see it my way, but as far as I am concerned, this is as appropriate a case
and an occasion as any can be to resolve all the fundamental issues raised by petitioners, and to
leave them unresolved now would be practically inviting some non-conformists to challenge the
Constitution and to keep not only the wheels of the transition at a standstill, but worse, also the
animus of the people in suspended animation fraught with anxiety, with all the dire consequences
such a situation entails.

Some legalists would call the government under the proclaimed Constitution a revolutionary
government, but the President denies that it is, because, according to him, it is to operate under a
Constitution ratified by the people. At this crucial moment in the history of the nation, We need not
bother about variant nomenclatures; these can be subjective and are, in any event, unsubstantial.
What is of supreme and utmost importance is that the people be told what exactly the situation is,
sans the veneer of what might turn out after all to be an inaccurate appellation. The people must
know the real score, and, as a member of the Supreme Court, I do not hesitate to tell them that, as I
have already explained above, in my honest opinion, the purported ratification of the Constitution
attested in Proclamation 1102 and based on the referendum among the Citizens Assemblies falls
short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. I must
hasten to add, however, that such unfortunate drawback notwithstanding, and considering all other
relevant circumstances, principally, the naked proof before Us indicating that the people approve of
it, I earnestly and sincerely believe that the new Constitution is legally recognizable and should be
recognized as legitimately in force.

I reiterate I have no legal means of denying it to be a fact, as stated in the proclamation, that
14,000,000 Filipinos have manifested in the referendum in the Citizens Assemblies their approval of
this Constitution. And even if We considered that said referendum was held under the aegis of full
implementation of the martial law proclaimed by the President under Proclamation 1081, as
mandated by General Order No. 20, We would not be able to ignore that the government under this
Constitution is well organized and is in stable, effective and complete control of the whole Philippine
territory, and what is more pertinently important, that this Constitution purged as it is now of its
Achilles heel, the Interim National Assembly, may fairly be said to be acceptable generally to the
people, embodying as it does meaningful reforms designed to check, if not to eradicate the then
prevalent causes of widespread popular restiveness and activism which has already assumed
practically the proportions of an armed insurgency or rebellion somehow endangering the security
and safety of the constituted government, if not the integrity of the nation. And in connection with the
implementation of martial law thus ordered, as I have already noted earlier in this opinion, its being
done Philippine style may be of some relevance, since such enforcement is not characterized by the
rigor that the usual concept of martial law connotes, hence, any suggestion of constructive duress
relative to the proceedings in the Assemblies and the Barangays may not fully hold water. Upon
these premises, it is my considered opinion that if in any sense the present government and
Constitution may be viewed as revolutionary, because they came into being, strictly speaking, extra-
constitutionally or outside the pale of the 1935 Constitution, they are nonetheless entitled to be
accorded legitimate standing, for all intents and purposes and for all concerned, under the
universally accepted principle that a revolution, whether violent or bloodless, is illegal only when it
fails to gain the support of the people. Indeed, under these circumstances, I cannot resist the
temptation of asking, is it juridically possible for this Court to declare unconstitutional and without
force and effect the very Constitution under which it presently exists? I am inclined to hold that the
answer to this question can only be in the negative. Consequently, petitioners are not entitled to any
judicial relief and, I have no alternative but to vote for the dismissal of the supplemental petition of
January 15, 1973.

In conclusion, I hold that the 1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution now in force by virtue of Proclamation 1102, issued
pursuant to the certified results of the referendum in the Citizens Assemblies all over the country
favoring its adoption and enforcement.

Long live our country, the Philippines! God bless our people, the Filipino people!

ZALDIVAR, J., dissenting:

I cannot agree with my worthy colleagues who hold the view that the petitions in all these have
become moot and academic simply because the relief prayed for by petitioners cannot be granted
after Proclamation No. 1102 was issued by the President of the Philippines. A case does not
become moot where there remain substantial rights or issues that are controverted and which are
not settled.1 This Court has decided cases even if no positive relief, as prayed for by a party in the
case, could be granted, or even if a party has withdrawn his appeal, if the case presented to the
court for resolution is a clear violation of the Constitution or of fundamental personal rights of liberty
and property.2
In the present cases it is in the public interest that this Court renders a ruling on the transcendental
issues brought about by the petition — issues which must be resolved by this Court as the guardian
of the Constitution of this Republic.

For a comprehensive appraisal of the facts and circumstances relevant to the resolution of the
issues involved in these cases, We shall narrate pertinent events, as shown in the record.

On December 1, 1972 the President of the Philippines, in his capacity as Commander-in-Chief of all
the Armed Forces of the Philippines and acting pursuant to Proclamation No. 1081, dated
September 21, 1972, issued Presidential Decree No. 73, submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds for the purpose. The Decree states that the same
was issued pursuant to Resolution No. 5843 of the 1971 Constitutional Convention proposing "to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor." "3 The decree set the plebiscite for January 15, 1973 and appropriated the
sum of P15,000,000.00 to carry out the purpose of the decree. The Decree provided for the
publication of the proposed Constitution, the dissemination of information regarding the proposed
Constitution, the application of the provisions of the Election Code of 1971 to the plebiscite insofar
as they are not inconsistent with the provisions of the decree, specially stating that the provisions of
said Code regarding the right and obligations of political parties and candidates shall not apply to the
plebiscite. The Decree further provided for a calendar for the plebiscite, for the registration of voters,
for the constitution of the board of inspectors, for watchers, for precincts and polling places, for the
official ballots to be used, for the preparation and transmission of plebiscite returns, for the canvass
of the returns by the city, municipality, and the municipal district board of canvassers, for the
canvass by the Commission on Elections and the proclamation of the results by said Commission,
for supplies and services needed for the holding of the plebiscite, and on the authority given to the
Commission on Elections to promulgate rules and regulations necessary to carry out the provisions
of the Decree.

On December 1, 1972, the President of the Philippines also issued General Order No. 17, ordering
and enjoining the Armed Forces of the Philippines and all other departments and agencies of the
Government to allow and encourage public and free discussions and debates on the proposed
Constitution before the plebiscite set for January 15, 1973.

During the first half of the month of December 1972, the petitioners, in the ten cases now before this
Court, filed petitions for prohibition with preliminary injunction, seeking to prevent the holding of the
plebiscite on January 15, 1973. The petitioners question the validity of Presidential Decree No. 73,
principally upon the ground that it is not in the power of the President of the Philippines to call a
plebiscite for the ratification or rejection of the proposed Constitution and to appropriate public funds
for the purpose. The petitioners also maintain that the period of only about 45 days from the date of
the approval of the proposed Constitution by the Constitutional Convention on November 30, 1972 to
January 15, 1973, was not a sufficient time for the electorate of this country to be properly informed
regarding the provisions of the proposed Constitution, and the electorate could not therefore vote
intelligently on whether to ratify or to reject the proposed Constitution, and so there could be no
proper submission of the proposed Constitution to the electorate. The petitioners further maintain
that the country being under martial law there could not be a free submission of the proposed
Constitution to the electorate. In some of the petitions, the petitioners also maintain that the
proposed Constitution contains provisions which are beyond the power of the Constitutional
Convention to adopt or to propose. All the petitioners prayed this Court to issue a writ of preliminary
injunction or restraining order to prevent the respondents in each of the petitions from implementing
Presidential Decree No. 73. This Court, however, did not issue the preliminary injunction, nor the
restraining order, prayed for. This Court required the respondents in each petition to answer the
petition, and set the cases for hearing on the petition for preliminary injunction and on the merits of
the case for December 18, 1972. Hearings were actually held for two days — on December 18 and
19, 1972.

On December 31, 1972, while these cases were pending before this Court, the President of the
Philippines issued Presidential Decree No. 86 creating the Citizens Assemblies throughout the
country. Among others, Decree No. 86 provides that there is created a citizen assembly in each
barrio in municipalities, and in each district in chartered cities, provided that in the case of Manila
and other chartered cities where there are no barrios there shall be a citizen assembly in every ward;
that the citizen assemblies shall consist of all persons who are residents of the barrio, district, or
ward for at least six months, 15 years of age or over, citizens of the Philippines, and who are
registered in the list of citizens assembly members kept by the barrio, district or ward secretary. As
stated in the decree, the purpose of establishing the citizens assemblies is to broaden the base of
the citizens' participation in the democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues.

On January 5, 1973 the President of the Philippines issued Presidential Decree No. 86-A which,
among others, provided for the submission to the citizens' assemblies created under Presidential
Decree No. 86 questions to be answered, and among those questions are these two: (1) "Do you
approve of the new Constitution?"; (2) "Do you still want a plebiscite to be called to ratify the new
Constitution ?"

On January 7, 1973 the President issued General Order No. 20, ordering the postponement of the
plebiscite that had been scheduled for January 15, 1973. Said general order reads as follows:

GENERAL ORDER NO. 20

WHEREAS, pursuant to Presidential Decree No. 73 dated December 1, 1972, a

plebiscite has been called on January 15, 1973 at which the proposed Constitution of
the Philippines shall be submitted to the people for ratification or rejection;

WHEREAS, Presidential Decree No. 86, dated December 31, 1972, created Citizens
Assemblies so as to afford ample opportunities for the citizenry to express their views
on important national issues;

WHEREAS, one of the questions presented to the Citizens Assemblies is: "Do you
like the plebiscite on the proposed Constitution to be held later?

WHEREAS, it is necessary to hold in abeyance the plebiscite until the people's

preference has been ascertained;

NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the

Armed Forces of the Philippines, and pursuant to Proclamation No. 1081, dated
September 21, 1972, do hereby order that the plebiscite scheduled to be held on
January 15, 1973, be postponed until further notice.

I further order that the provision of Section 3 of Presidential Decree No. 73 insofar as
they allow free public discussion of the proposed Constitution, as well as my order of
December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for
the purposes of free and open debate on the proposed Constitution, be suspended in
the meantime.
 Done in the City of the Manila, this 7th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.

(Sgd.) FERDINAND E.
MARCOS
President
Republic of the
Philippines

By the President:

(Sgd.) ALEJANDRO MELCHOR

Executive Secretary

As of the day when the above-quoted General Order No. 20 was issued these cases were all
pending decision before this Court.

At this juncture I am going to particularize my discussion on case G.R. No. L-35948 (Vidal Tan, et
al., petitioners vs. Commission on Elections, et al., respondents). What I say in connection with the
Vidal Tan case may also be considered in relation with the other cases before Us.

On January 12, 1973 counsel for the petitioners in the Tan case filed an "Urgent Motion For Early
Decision", alleging, among others, that it was announced that voting by the Citizens' Assemblies
would be held on January 10 to 15, 1973 whereby the Citizens' Assemblies would be asked a
number of questions, among them the following:

(1) Do you approve of Citizens' Assemblies as the base of popular government to

decide issues of national interests?

(2) Do you approve of the new Constitution?

(3) Do you want a plebiscite to be called to ratify the new Constitution?

(4) Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?

(5) If the election would not be held, when do you want the next elections to be
called?

(6) Do you want martial law to continue?

Counsel for the petitioners also alleged that petitioners had reasons to fear that the question: "Do
you approve of the new Constitution?", in relation to the question following it: "Do you still want a
plebiscite to be called to ratify the new Constitution?", would be an attempt to bypass and short-
circuit this Court before which the question regarding the validity of the plebiscite scheduled for
January 15, 1973 on the proposed Constitution was pending resolution. Counsel for petitioners also
alleged that they had reasons to fear "that if an affirmative answer to the two questions just referred
to would be reported then this Honorable Court and the entire nation would be confronted with a fait
accompli which has been attained in a highly unconstitutional and undemocratic manner;" and
"the fait accompliwould consist in the supposed expression of the people approving the proposed
Constitution." Counsel further states "that if such event would happen then the case before this
Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the people through the
Citizens' Assemblies, it would be announced that the proposed Constitution with all its defects, both
congenital and otherwise, has been ratified" and "that in such a situation, the Philippines would be
facing a real crisis and there is a likelihood of confusion if not chaos, because then, the people and
their officials would not know which Constitution is in force."4

On January 13, 1973 this Court ordered the Solicitor General to answer the urgent motion of the
petitioners, dated January 12, 1973.

On January 15, 1973 counsel for petitioners filed "A Supplemental Motion for Issuance of
Restraining Order and for Inclusion of Additional Respondents." The respondents sought to be
added were the Department of Local Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; and the National
Ratification Coordinating Committee and its chairman, Guillermo de Vega. In their supplemental
motion for the issuance of restraining order enjoining the original respondents, as well as the
additional respondents, and their deputies, subordinates and/or substitutes from collecting,
certifying, announcing and reporting to the President or other officials concerned, the Citizens'
Assembly referendum results that would be obtained in the voting held during the period comprised
between January 10 and January 15, 1973, particularly on the two questions: (1) "Do you approve of
the new Constitution?", and (2) "Do you still want a plebiscite to be called for the ratification of the
new Constitution?" Counsel for petitioners further alleged that for lack of material time the
appropriate amended petition to include the new respondents could not be completed because the
submission of the proposed Constitution to the Citizens' Assemblies was not made known to the
public until January 11, 1973, but nevertheless the new respondents could properly be included
because in their petition petitioners prayed "for the annulment not only of Presidential Decree No. 73
but also of any similar decree, proclamation, order or instruction" so that Presidential Decree Nos. 86
(and 86-A) in so far at least as they attempt to submit the proposed Constitution to a plebiscite by
the Citizens' Assemblies are properly in issue in the case, and those who enforce, implement and
carry out said Presidential decrees and the instructions incidental thereto clearly fall within the scope
of the petition. Moreover, counsel for petitioners alleges that in the original petition they prayed for
the issuance of a writ of preliminary injunction restraining not only the original respondents, but also
their agents from the performance of acts, implementing, or tending to implement, Presidential
Decree No. 73 or any other similar decree, order, instructions, or proclamation in relation to the
holding of the plebiscite in question on January 15, 1973, and that they had also prayed for such
other relief which may be just and equitable. Counsel for petitioners stressed the plea that unless the
petition is decided immediately and the respondents were restrained or enjoined from collecting,
certifying, reporting, or announcing to the President the result of the alleged voting of the so-called
Citizens' Assemblies irreparable damage would be caused to the Republic of the Philippines, to the
Filipino people and to the cause of freedom and democracy, because after the result of the
supposed voting on the two precise questions that they mentioned shall have been announced, a
conflict would arise between those who maintain that the 1935 Constitution is still in force, on the
one hand, and those who maintain that the old Constitution is superseded by the proposed
Constitution on the other hand, thereby creating confusion if not chaos; and that even the jurisdiction
of this Court would be subject to serious attacks because the advocates of the theory that the
proposed Constitution had been ratified by reason of the announcement of the results of the
proceedings of the Citizens Assemblies would argue that General Order No. 3, which would also be
deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, had placed
Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach and jurisdiction of this Court.

This Court required the Solicitor General to comment on the supplemental motion and set the said
motion for hearing on January 17, 1973.
On January 17, 1973 the urgent motion of January 12, 1973 and the supplemental motion for the
issuance of the restraining order and the inclusion of additional respondents were heard on oral
arguments by counsel for the petitioners and the Solicitor General. Towards the end of the hearing,
and while counsel for the petitioners was answering questions from Members of this Court, the Chief
Justice received a copy of Proclamation No. 1102 of the President of the Philippines "announcing
the ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional
Convention." The Chief Justice read in open court, for the record, Proclamation No. 1102. Said
Proclamation reads as follows:

PROCLAMATION NO. 1102

ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE

CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

WHEREAS, the Constitution proposed by the nineteen hundred seventy-one

Constitutional Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios in municipalities and in

districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;

WHEREAS, responding to the clamor of the people and pursuant to Presidential

Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a plebiscite to be called to ratify the new Constitution?

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-
one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangay (Citizens Assemblies) should be considered as a vote
in a plebiscite;

WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the
New Constitution should already be deemed ratified by the Filipino people;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

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

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.

Done in the City of Manila, this 17th day of January in the year of Our Lord, nineteen
hundred and seventy-three.

FERDI
NAND
E.
MARC
OS
Preside
nt of
the
Philippi
nes

By the President:

ALEJANDRO MELCHOR
Executive Secretary

And so, what the petitioners had feared, as expressed in their urgent motion for early decision and in
their supplemental motion to issue restraining order, etc., that the results of the voting in the Citizens'
Assemblies might be taken as a basis for proclaiming the ratification of the proposed Constitution,
had actually happened. And so, what the petitioners in all the ten cases now before Us — among
them civic leaders, newspapermen, Senators and Congressmen, Members of the 1971
Constitutional Convention, and professionals — had tried to prevent from happening, that is, the
proclamation of the ratification of the proposed constitution on the basis of the affirmative votes that
might be cast in the plebiscite that was set for January 15, 1973 pursuant to Presidential Decree No.
73, the legality of which decree was being questioned by petitioners, had happened.

The crucial question before this Court is whether or not Presidential Proclamation No. 1102
announcing the ratification of the proposed Constitution of 1972 is in accordance with the
Constitution and has the effect of making the proposed Constitution of 1972 effective and in force as
of January 17, 1973 when the proclamation was issued. This is, I believe, the vital question that this
Court is called upon to resolve, and it is for this reason that I believe that this case has not been
moot and academic. While it is true that the relief prayed for by the petitioners, that the original
respondents be enjoined from implementing Presidential Decree No. 73, cannot now be granted,
Proclamation No. 1102 nevertheless has the effect of consummating the ratification of the proposed
Constitution — the very event which the petitioners had precisely sought to prevent from happening
when they filed their petitions. Presidential Proclamation No. 1102 has a tremendous effect upon the
political, economic and social life of the people of this country. I believe, therefore, that this Court
should not indulge in the niceties of procedural technicalities and evade the task of declaring
whether or not the Constitution proposed by 1971 Convention has been validly ratified as announced
in said Proclamation No. 1102. This Court is called upon to give the people of this Republic the
proper orientation regarding the effect of said Proclamation No. 1102. That orientation will only come
about when this Highest Court of the land has rendered a ruling on whether or not said Proclamation
No. 1102 is valid.
I cannot agree with the view of some of my colleagues that this Court cannot make a ruling on the
question of whether or not Proclamation No. 1102 is valid, because the validity of said proclamation
is not the matter that is squarely presented to this Court for resolution by the petitions in these
cases. I believe, however, that this Court should not close its eyes to the fact that in the ten petitions
that are before this Court the uniform prayers of the petitioners are to enjoin the implementation of
Presidential Decree No. 73 and to nullify said decree — precisely in order to prevent the ratification
of the Constitution proposed by the 1971 Convention in a manner that is not in accordance with the
Constitution and the law. So much so that in G.R. No. L-35948 (Tan, et al. v. Comelec, et al.) the
petitioners, among others, prayed that judgment be rendered declaring" ... Presidential Decree No.
73 or any similar decree, proclamation, order or instruction unconstitutional, null and void and
making the writ of preliminary injunction permanent." It is not difficult to understand that the purpose
of the petitioners was to invalidate any and all orders, decrees and proclamations that are corollary
or related to Presidential Decree No. 73 which had for its main purpose to submit the Constitution
proposed by the 1971 Convention to a plebiscite on January 15, 1973 and thereby determine
whether the people approve or reject the proposed Constitution. As We have adverted to, the
objective of the petitioners was to prevent the ratification of the proposed constitution in a manner
that is offensive to the Constitution and the law. All orders, decrees, instructions, or proclamations
made after the issuance of Presidential Decree No. 73, which have for their purpose either to
supplement Presidential Decree No. 73 or to accomplish through other means or methods what
Presidential Decree No. 73 was issued for, are encompassed within the prayer of petitioners to
nullify "any similar decree, proclamation, order, or instruction". Presidential Decrees Nos. 86 and 86-
A are such "similar" decrees, because, as it turned out, Presidential Decree No. 86 provided for the
organization of the citizens' assemblies which became the forums where the question of whether to
ratify or to reject the proposed Constitution was submitted; and, as it turned out, Presidential Decree
No. 86-A provided for the very question which otherwise the voters would have been asked to
answer "Yes" or "No" in the plebiscite which had been provided for in Presidential Decree No. 73. In
other words, Presidential Decree No. 86 supplanted Presidential Decree No. 73 in so far as the latter
decree provided for the forum where the question was to be asked; while Presidential Decree No.
86-A supplanted Presidential Decree No. 73 in so far as the latter decree provided for the question
to be asked regarding the proposed Constitution. And finally because Presidential Proclamation No.
1102 has for its basis what was done pursuant to Presidential Decrees Nos. 86 and 86-A, it follows
that Proclamation No. 1102 is just the "proclamation" that the petitioners sought to nullify or
invalidate if issued.

I believe that the effects of Proclamation No. 1102 have an intimate bearing on the objectives of the
petitioners when they filed the instant petitions for prohibition, and so said proclamation has to be
considered along with all the issues raised by the petitioners in the cases at bar. More so, because
said Proclamation No. 1102 was read into the record by the Chief Justice of this Court during the
hearing of L-35948 (Tan vs. Comelec), in open court, on January 17, 1973. I believe that this Court
must not ignore Proclamation No. 1102 in relation to the matters and to the issues ventilated before
this Court. Proclamation No. 1102 was formally brought to the attention of this Court. It is my view
that this Court should not evade its duty of defining for the benefit of the people of this Republic the
legal and constitutional nature and effects of that proclamation. I, for one, as a humble member of
this Court, feel it my duty to say what I think, and believe, about Proclamation No. 1102. I do this not
because of any desire on my part to obstruct the workings of the agencies and instrumentalities of
our Government, or to foster among the people in our country an attitude of disrespect or disloyalty
towards the constituted authorities that presently run the affairs of our Government. I am only doing
what I believe is my sworn duty to perform.

The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:
 Section 1. The Congress in joint session assembled by a vote of three fourths of all
the Members of the Senate and of the House of Representatives voting separately,
may propose amendments to the Constitution or call a convention for that purpose.
Such amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are submitted to
the people for their ratification.

It is in consonance with the above-quoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines passed Resolution No. 2 calling a convention to propose
amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:

Section 7. The amendments proposed by the Convention shall be valid and

considered part of the Constitution when approved by a majority of the votes cast in
an election which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.

It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention there was a clear mandate that the amendment proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for their ratification
as provided in the Constitution.

This Court, in the case of Tolentino vs. Commission on Elections, L-35140, October 16, 1971 (41
SCRA 715), speaking through Mr. Justice Barredo, said:

The Constitutional Convention of 1971, as any other convention of the same

nature, owes its existence and 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 coup d' etat. As to such kind of conventions, it is absolutely true that
the convention is completely without restraint and omnipotent all wise, and it 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 ...

xxx xxx xxx

As to matters not related to its internal operation and the performance of its assigned
mission to propose amendments to the Constitution, the Convention and its officers
and members are all subject to all the provisions of the existing Constitution. Now we
hold that even as to its latter task of proposing amendments to the Constitution, it is
subject to the provisions of Section 1 of Article XV.

In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has thereby come into effect.

It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 was not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.

I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.

It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard, or, in violation, of the provisions of Section 1 of Article V of
the 1935 Constitution.

Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plesbiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.

The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.

An election is the embodiment of the popular will, the expression of the sovereign
power of the people. In common parlance an election is the act of casting and
receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas,
24 Phil. 632, 637).
 Election" implies a choice by an electoral body at the time and substantially in the
manner and with the safeguards provided by law with respect to some question or
issue. (Leffel v. Brown, Com. Pl., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at
footnote 6.5).

... the statutory method whereby qualified voters or electors pass on various public
matters submitted to them — the election of officers, national, state, county, township
— the passing on various other questions submitted for their determination (29
C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5,
241 Iowa 358).

Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W.

2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234).

The right to vote may be exercised only on compliance with such statutory
requirements as have been set up by the legislature, (People ex rel. Rago v. Lipsky
63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d
169 in 29 C.J.S. 38). (Emphasis supplied)

In this connection I herein quote the pertinent provisions of the Election Code of 1971:

Sec. 2. Applicability of this Act. — All elections of Public officers except barrio
officials and plebiscitesshall be conducted in the manner provided by this Code.

Sec. 99. Necessity of registration to be entitled to vote. — In order that a qualified

voter may vote in any regular or special election or in any plebiscite, he must be
registered in the permanent list of voters for the city, municipality or municipal district
in which he resides: Provided, That no person shall register more than once without
first applying for cancellation of his previous registration. (Emphasis supplied). 3)
Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388).

It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the
1935 Constitution the age requirement to be a qualified voter is 21 years or over.

But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which would
mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people and asking them to raise their hands
in answer to the question of whether they vote for or against a proposed Constitution. The election
processes as provided by law should be strictly observed in determining the will of the sovereign
people in a democracy. In our Republic the will of the people must be expressed through the ballot in
a manner that is provided by law.

It is said that in a democracy the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands of
a well-ordered society require. The rule of law must prevail even over the apparent will of the
majority of the people, if that will had not been expressed, or obtained, in accordance with the law.
Under the rule of law public questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or in the ratification of an
amendment to the Constitution.

The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified or not:

When it is said that "the people" have the right to alter or amend the constitution, it
must not be understood that this term necessarily includes all the inhabitants of the
state. Since the question of the adoption or rejection of a proposed new constitution
or constitutional amendment must be answered by a vote, the determination of it
rests with those who, by the existing constitution, are accorded the right of suffrage,
But the qualified electors must be understood in this, as in many other cases, as
representing those who have not the right to participate in the ballot. If a constitution
should be abrogated, and a new one adopted, by the whole mass of people in a
state, acting through representatives not chosen by the "people" in the political sense
of the term, but by the general body of the populace, the movement would be extra-
legal. (Black's Constitutional Law, Second Edition, pp. 47-48).

The theory of our political system is that the ultimate sovereignty is in the people,
from whom springs all legitimate authority. The people of the Union created a
national constitution, and conferred upon it powers of sovereignty over certain
subjects, and the people of each State created a State government, to exercise the
remaining powers of sovereignty so far as they were disposed to allow them to be
exercised at all. By the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and neither the officers
of the State, nor the whole people as an aggregate body, are at liberty to take action
in opposition to this fundamental law. (Cooley's Constitutional Limitations, 8th
Edition, Vol. I, p, 81 cited in Graham v. Jones, 3 So. 2d. 761, 782).

The theory that a favorable vote by the electorate, however unanimous, on a

proposal to amend a constitution, may cure, render innocous, all or any antecedent
failures to observe commands of that Constitution in respect of the formulation or
submission of proposed amendments thereto, does not prevail in Alabama, where
the doctrine of the stated theory was denied, in obvious effect, by the pronouncement
60 years ago of broad, wholesome constitutional principles in Collier v.
Frierson supra, as quoted in the original opinion, ante. The people themselves are
bound by the Constitution; and, being so bound, are powerless, whatever their
numbers, to change or thwart its mandates, except through the peaceful means of a
constitutional convention, or of amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution. The Constitution
may be set aside by revolution, but it can only be amended in the way it provides,"
said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103.
Johnson v. Craft, et al., 87 So. 375, 385, 387 On Rehearing).

The fact that a majority voted for the amendment, unless the vote was taken as
provided by the Constitution, is not sufficient to make a change in that instrument.
Whether a proposed amendment has been legally adopted is a judicial question, for
the court must uphold and enforce the Constitution as written until it is amended in
the way which it provides for. Wood v. Tooker 15 Mont. 8, 37 Pac. 840, 25 L.R.A.
560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving
 Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac.
1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99,
104).

Provisions of a constitution regulating its own amendment, ... are not merely
directory, but are mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment. These provisions
are as binding on the people as on the legislature, and the former are powerless by
vote of acceptance to give legal sanction to an amendment the submission of which
was made in disregard of the limitations contained in the constitution. (16 C.J.S. 35-
36 cited in Graham v. Jones, 3 So. 2d 761, 782).

It is said that chaos and confusion in the governmental affairs of the State will result
from the Court's action in declaring the proposed constitutional amendment void.
This statement is grossly and manifestly inaccurate. If confusion and chaos should
ensue, it will not be due to the action of the Court but will be the result of the failure of
the drafters of the joint resolution to observe, follow and obey the plain essential
provisions of the Constitution. Furthermore, to say that, unless the Court disregards
its sworn duty to enforce the Constitution, chaos and confusion will result, is an
inherently weak argument in favor of the alleged constitutionality of the proposed
amendment. It is obvious that, if the Court were to countenance the violations of the
sacramental provisions of the Constitution, those who would thereafter desire to
violate it and disregard its clear mandatory provisions would resort to the scheme of
involving and confusing the affairs, of the State and then simply tell the Court that it
was powerless to exercise one of its primary functions by rendering the proper
decree to make the Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793-
794).

In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not, complied with. In the case of Monsale v.
Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the filing of the same. However, on October 10,
1947, after the period for the filing of certificates of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by
withdrawing the withdrawal of his certificate of candidacy. The Commission on Elections, on
November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless
proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes
cast for Monsale upon the ground that the votes cast for him were stray votes, because he was
considered as having no certificate of candidacy. On the other hand, the boards of inspectors
credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the
election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the
decision of the lower court. This Court declared that because Monsale withdrew his certificate of
candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this court declared Nico the winner in
spite of the fact that Monsale had obtained more votes than he.

We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must
be upheld.

My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice, because of the existence of martial law in our country. The same
ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 13 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open
debate on the proposed constitution, be suspended in the meantime."5 It is, therefore, my view that
voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why
the results of the voting in the barangays should not be made the basis for the proclamation of the
ratification of the proposed Constitution.

It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it
is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered as not yet ratified by the people of this Republic,
and so it should not be given force and effect.

During the deliberation of these cases by this Court, a suggestion was made that because of the
transcendental effect of Proclamation No. 1102 on the country, the petitioners in these cases,
specially the petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a period of ten
days to move in the premises, considering that the issuance of Proclamation No. 1102 came as a
surprise to the petitioners and they had no opportunity to define their stand on said Proclamation in
relation to their petitions. The majority of the Court, however, were not in favor of the idea. I
expressed myself, and I so express now, that I am in favor of granting the petitioners the opportunity
to articulate their stand regarding Proclamation No. 1102 so that the objection of some members of
this Court to pass upon the validity of said proclamation upon the ground that it is not in issue in
these cases may be met, and so that the validity of Proclamation No. 1102, and the question of
whether or not the proposed 1972 Constitution has been validly ratified, may be resolved by this
Court once and for all.

At any rate, whether the petitioners are granted opportunity to define their stand on Proclamation No.
1102, or not, I humbly submit this opinion for whatever if may be worth, with the hope that the
officials and the citizens of this country will take note of it, and ponder over it. I am only doing my
duty according to the light that God has given me.

Footnotes

Concepcion, C.J. concurring:

1 Mun. of Malabang v. Benito, L-28113, March 28, 1969; NAWASA v. Piguing, et al.,
L- 35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967;
Gonzales v. Commission on Elections, L-28224, Nov. 29, 1967; Bara Lidasan v.
COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-22047, Aug.
31, 1967; Mun. of San Joaquin v. Siva, L-19870, March 18, 1967; Pelayo v. Auditor
General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L-
23326, Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964;
Guevara v. Inocentes, L-25577, March 15, 1966; Gillera v. Fernandez, L-20741, Jan.
31, 1964; Siguiente v. Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of
Naguilian v. NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079, Sept. 30,
1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al.,
L-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-15254, Sept. 16, 1961; Macias v.
Commission on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing
& Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L-
15138, July 31, 1961; Cu Bu Liong v. Estrella, et al.,
L-14212, July 31, 1961; Pampanga Sugar Development Co., Inc. v. Fuentes, et al.,
L-14738, July 31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L-
14759, July 31, 1961; Liwanag v. Central Azucarera Don Pedro, L-15372, July 31,
1961; Lecura v. Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen
Bee Trading Co., et al., L-15693, July 31, 1961; Pascual v. Secretary of Public Works
and Communications, L-10405, Dec. 29, 1960; Corominas, Jr. v. Labor Standards
Commission, L-14837, June 30, 1961; City of Baguio v. NAWASA, L-12032, Aug. 31,
1959; City of Cebu v. NAWASA, L-12892, April 20, 1960; Montes v. Civil Service
Board of Appeals, 101 Phil. 490; Rutter v. Esteban, 93 Phil. 68; Araneta v.
Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41 Phil. 322.

2 Reiterated in the aforementioned Proposed Constitution [Subdivision (2) (a) of

Section 5, Article X thereof].

Teehankee, J., concurring:

1 Such Citizens Assemblies, as stated in the proclamation, were created in barrios in

municipalities and in districts/wards in chartered cities pursuant to Presidential
Decree No. 86, dated December 31, 1972, composed of all persons who are
residents of the barrio, district or ward for at least six months, fifteen years of age or
over, citizens of the Philippines and who are registered in the list of Citizen Assembly
members kept by the barrio, district or ward secretary." (2nd whereas clause)

2 6th whereas clause.

3 The conduct of such elections (or plebiscite) is, under Article X of the Constitution,
entrusted to the Commission on Elections which has "exclusive charge" (See Justice
Barredo's separate opinion, p. 7). Under Article V of the Constitution, the right of
suffrage is limited to qualified and duly registered voters, "who are 21 years of age or
over and are able to read and write." Tolentino vs. Comelec, infra, in denying
reconsideration, prohibited the submittal in an advance election of the Con-Cons
Organic Res. No. 1 proposing to lower the voting age to 18, as a piece-meal and
incomplete amendment and rejected the contention "that the end sought to be
achieved is to be desired." As per Barredo, J., "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 be actually in force."

4 Article VI, sec. 23, par. 2 of the Constitution, provides that "No money shall be paid
out of the Treasury except in pursuance of an appropriation made by law."
5 Cf. Tolentino vs. Comelec, L-34150, Oct. 16, 1971 and Resolution on motion for
reconsideration with concurring opinions. Nov. 4, 1971.

6 See text, Presidential Decree No. 73.

7 Article XVI, sec. 1, par. 1 of the proposed Constitution.

Barredo, J., concurring and dissenting:

1 It was agreed in the deliberations that the validity of Presidential Decree No. 73
would be passed upon as if Proclamation 1102 did not exist, and afterwards, for
those who would like to express their views on the matter, the validity of
Proclamation 1102 itself, hence the tenses and moods in this discussion.

2 Under the Constitution of 1935, both Article X and Article XV use the same word
"election", hence, the plebiscite contemplated in the latter Article must be deemed to
be intended to be included among the elections placed under the charge of the
Commission, irrespective of the form to be employed therein.

Fernando, J., concurring and dissenting:

1 327 US 304 (1946).

2 Ex parte Kerby 205 P. 279 (1922).

3 L-32476, Oct. 20, 1970, 35 SCRA 367.

4 Ibid, 369.

5 Cf. Koehler v. Hill, 14 NW 738, 60 Iowa 543 (1883); Hatch v. Stoneman, 6 P. 734,
66 Cal. 632 (1885); Macmillan v. Blattner 25 NW 245, 67 Iowa 287 (1895); State v.
Powell, 27 So 297, 77 Miss. 543 (1900); Hammond v. Clark, 71 SE 479, 136 Ga. 313
(1911); State v. Hall, 171 NW 213, 44 ND 459 (1919); Hamilton v. Vaughan, 179 NW
533, 212 Mich. 31 (1920) ; State v. Smith, 138 NE 881, 105 Ohio St. 570 (1922):
Looney v. Leeper, 292 P. 365, 145 Okl. 202 (1930); School District v. City of Pontiac,
247 NW 474, 262 Mich. 338 (1933).

6 According to Art. VI, Sec. 23. par. 2 of the Constitution: "No money shall be paid
out of the Treasury except in pursuance of an appropriation made by law."

7 Cf. Hutcheson v. Gonzales, 71 P. 2d 140 (1937) : State Smith, 184 SW 2d 598

(1945).

8 L-28196 and 28224, November 9, 1967, 21 SCRA 774.

9 Ibid, 801-802.

10 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); People v. Vera, 65 Phil.
56 (1937); Planas v. Gil, 67 Phil. 62 (1939): Tan v. Macapagal, L-24161, Feb. 29,
1972, 43 SCRA 677.
Zaldivar, J., dissenting:

1 Reserve Lite Ins. Co., Dallas, Tex. v. Franfather, 225 P. 2d 1035, 1036, 123 Colo.
77, 39 A.L.R. 2d 146; Appeal of Frank Foundries Corporation, 56 N.E. 2d 649, 652,
653, 323, III. App. 594 in 27A Words and Phrases, p. 145.

2 Krivenko vs. Register of Deeds, 79 Phil. 461; Philippine Association of Colleges

and Universities vs. Secretary of Education, 97 Phil. 806; Hebron vs. Reyes, 104
Phil. 175.

3 Annex 1 of the Answer of the Respondents in L-35948 shows the resolution of the
Constitutional Convention of November 22, 1972, proposing to President Marcos that
a decree be issued calling for a plebiscite is Resolution No. 29. "Resolution No.
5843" is as stated in Presidential Decree No. 73.

4 Words within quotation marks in this paragraph are as quoted from the Urgent
Motion For Decision in L-35948, dated January 12, 1973.

5 As quoted from General Order No. 20, January 7, 1973.

G.R. No. 56515 April 3, 1981

UNITED DEMOCRATIC OPPOSITION (UNIDO), petitioner,

vs.
COMMISSION ON ELECTIONS (COMELEC), respondent.

BARREDO, J.:

Appeal by the UNIDO, a political organization or aggrupation campaigning for "NO" votes to the
amendments to the Constitution of the Philippines of 1973 proposed by the Batasang Pambansa,
from the resolutions of the respondent Commission on Elections dated March 18 and March 22,
1981.

As alleged in the petition:

3. Respondent COMELEC issued three (3) Resolutions all dated March 5, 1981, to
wit:

(1) Resolution No. 1467 providing for Rules and Regulations for 'equal opportunity'
on public discussions and debates on the plebiscite questions to be submitted to the
people on April 7, 1981;

(2) Resolution No.1468 providing "equal time on the use of the broadcast media
(radio and television) in the plebiscite campaign"; and

(3) Resolution No.1469 providing for "equal space on the use of the print media in
the 1981 plebiscite of April 7, 1981".

The pertinent portions of said Resolutions Nos. 1467, 1468 and 1469 are attached to
this Petition as Annexes "A", "A- l" and "A-2" respectively; (P. 2, Petition.)

The questioned resolutions are as follows:

RESOLUTION NO. 1467

RULES AND REGULATIONS ON PUBLIC DISCUSSIONS AND

DEBATES ON THE PLEBISCITE QUESTIONS

The Commission on Elections, pursuant to the powers vested in it by the

Constitution, the 1978 Election Code and pertinent enactments of the Batasang
Pambansa, RESOLVED to promulgate the following rules and regulations governing
free discussions and debates on the plebiscite questions to be submitted to the
people on April 7, 1981. (Annex "A", Petition.)

xxx xxx xxx

RESOLUTION NO. 1468

The Commission on Elections, by virtue of the powers conferred upon it by the
Constitution, the 1978 Election Code and pertinent enactments of the Batasang
Pambansa, RESOLVED to promulgate, as it hereby promulgates, the following rules
and regulations to govern the use of broadcast media in the 1981 plebiscite.

I. GENERAL PROVISIONS

SECTION 1. Policy. – (1) These rules and regulations are intended to insure that
broadcast time for campaign purposes equal as to duration and quality shall be
available to all supporters or oppositors, political parties, groups or aggrupations at
the same rates or given free of charge.

(2) Radio and television stations shall not be allowed to schedule any non-political
program or permit any sponsor to manifestly favor or oppose any side of the 1981
plebiscite issues or to unduly or repeatedly refer to or include in the program or
broadcast any supporter or oppositor and/or political party, group or aggrupation
favoring or opposing any side of the 1981 plebiscite issues.

(3) In all instances, the right of radio and television stations to broadcast accounts of
significant or newsworthy events and views on matters of public interest shall not be
unpaired. (Annex "A-1", Petition.)

xxx xxx xxx

RESOLUTION NO. 1469

The Commission on Elections, pursuant to its powers under the Constitution, the
1978 Election Code, and pertinent enactments of the Batasang Pambansa,
RESOLVED to promulgate, as it hereby promulgates, the following rules and
regulations on the use of the print media, the printing and dissemination of printed
political propaganda in the campaign for or against the 1981 plebiscite questions.

I. GENERAL PROVISIONS

SECTION 1. Policy – The policy herein is to enable individual supporters, oppositors,

political parties, groups or aggrupations when they so desire, to purchase or avail of
advertising space for campaign purposes under the following rules and regulations
which assure that available advertising space in the print media shall be, as far as
practicable, equitably allocated.

SECTION 2. Comelec Supervision. – The Commission on Elections shall recognize

the principle of self-regulation in the print media and shall exercise as far as
practicable only minimal supervision over the print media leaving the enforcement of
these rules and regulations largely to the Ministry of Public Information. (Annex "A-2",
Petition.)

4. Petitioner UNIDO addressed a letter dated 10 March 1981 to respondent

COMELEC, which reads:

Your Resolutions Nos. 1467, 1468 and 1469, all promulgated on

March 5, 1981, provided for equal opportunity "on public discussion
 and debates on the plebiscite", equal time "on the use of the
broadcast media in the plebiscite campaign" and equal space "on the
use of the print media in the 1981 plebiscite".

The newspapers this morning have announced that President Marcos

will lead the campaign for "Yes" votes on the proposed constitutional
amendments in the April 7 plebiscite in his nationwide "Pulong-
Pulong sa Pangulo" radio-television program on Thursday, March 12,
from 9:30 to 11:30 P.M., which will be carried live by 26 television and
248 radio stations throughout the country.

The undersigned, in behalf of the United Democratic Opposition

(UNIDO), hereby demand exactly the same number of TV and radio
stations all over the country at the earliest possible date, to campaign
for 'No' votes in the forthcoming plebiscite.

Likewise, on 17 March 1981, petitioner thru its undersigned legal counsel addressed
its second letter to respondent Commission on Elections, which reads:

Pursuant to the letter of UNIDO dated 10 March 1981 requesting

for equal opportunity, the same prime time and number of TV and
radio stations all over the country which were utilized by President
Marcos last March 12 from 9:30 to 11:30 P.M., we wish to state that
on Saturday, March 21, the UNIDO will hold a public meeting at the
Plaza Miranda, Quiapo, Manila, and we hereby request that
the same be covered by radio and television from 9:30 to 11:30 P.M.

We trust that the radio and. television facilities win be directed to comply with this
request.

5. Respondent COMELEC issued its Resolution of March 18, 1981 quoting the
above letters of petitioner UNIDO, but held that they "cannot be granted and the
same is hereby denied." Said COMELEC Resolution appears as Excerpts from the
Minutes of the Session of the Commission Held on March 19, 1981', a copy of which
is hereto attached to form an integral part of this Petition as Annex "B"; (Pp. 2-3,
Petition.) Said Annex "B" reads thus:

EXCERPT FROM THE MINUTES OF THE SESSION OF

THE COMMISSION HELD ON MARCH 18,1981

(UNDER THE SAME QUORUM)

xxx xxx xxx

81-54. In the matter of the letter-request of the United Democratic Opposition

(UNIDO) for free coverage by "TV and Radio Stations all over the country" of its
campaign for "No" votes in the forthcoming plebiscite.

Before the Commission is a "demand" of the United Democratic Opposition (UNIDO)

for coverage by 'TV and radio stations all over the country' of its campaign for 'No'
 votes in the forthcoming plebiscite. This 'demand' is contained in a letter dated 10
March 1981, received by the Commission on Elections on March 11, 1981, signed by
Gerardo Roxas and J.B. Laurel, Jr., quoted in full as follows:

10
March
1981

The Commission on Elections

Manila

Gentlemen:

Your Resolution Nos. 1467, 1468 and 1469, all promulgated on March 5, 1981,
provide for equal opportunity "on public discussion and debate on the plebiscite",
equal time on the use of the broadcast media in the plebiscite campaign and equal
space on the use of the print media in the 1981 plebiscite

The newspapers this morning have announced that President Marcos will lead the
campaign for "Yes" votes on the proposed constitutional amendments in the April 7
plebiscite in his nationwide "Pulong-Pulong sa Pangulo" radio television program on
Thursday, March 12, from 9:30 to 11:30 P.M., which will be carried five by 26
television and 248 radio stations throughout the country.

The undersigned, in behalf of the United Democratic Opposition (UNIDO), hereby

demand exactly the same opportunity, the same prime tune and the same number of
TV and radio stations all over the country at the earliest possible date, to campaign
for 'No' votes in the forthcoming plebiscite.

Very
truly
yours,

(SGD.)
GERA
RDO
ROXA
S

(SGD.)
J. B.
LAURE
L, JR.

Subsequently, on 17 March 1981, the Legal Counsel of the UNIDO, Ambrosio

Padilla, reiterated the UNIDO desire for coverage by media, "the same prime time
and number of TV and radio stations all over the country which were utilized by
President Marcos last March 12 from 9:30 to 11:30 P.M." In this letter, the legal
counsel manifested that the UNIDO wants media coverage for its projected "public
 meeting at the Plaza Miranda, Quiapo, Manila . . . . from 9:30 to 11:30 P.M." on
Saturday, March 21.

The letter of the UNIDO Legal Counsel reads

17
March
1981

The Commission on Elections

Manila

Attention: CHAIRMAN VICENTE M. SANTIAGO, JR.

Gentlemen:

Pursuant to the letter of UNIDO dated 10 March 1981 requesting for equal
opportunity, the same prime time and number of TV and radio stations all over the
country which were utilized by President Marcos last March 12 from 9:30 to 11:30
P.M., we wish to state that on Saturday, March 21, the UNIDO will hold a public
meeting at the Plaza Miranda, Quiapo, Manila, and we hereby request that the same
be covered by radio television from 9:30 to 11:30 P.M.

We trust that the radio and television facilities will be directed to comply with this
request.

Very
truly
yours,

(SGD.)
AMBR
OSIO
PADIL
LA

L
e
g
a
l
C
o
u
n
s
e
l
,
U
 N
I
D
O

After due and careful deliberation, this Commission holds, and hereby rules, that the
demand of the UNIDO cannot be granted and the same is hereby denied.

It is the considered view of this Commission that when President Marcos conducted
his 'pulong-pulong' or consultation with the people on March 12, 1981, he did so in
his capacity as President Prime Minister of the Philippines and not as the head of
any political party. Under the Constitution, the 'Prime Minister and the Cabinet shall
be responsible . . . . for the program of government and shall determine the
guidelines of national policy' (Art. IX, Sec. 2 ). 'This Commission takes judicial notice
of the fact that the proposed amendments, subject of the President's remarks in the
'Pulong-Pulong Pambansa' last March 12, 1981, were initiated under the leadership
of Mr. Marcos as President/Prime Minister in the exercise of his constitutional
prerogative aforecited. In fact, it was President/Prime Minister Ferdinand E. Marcos
who issued the special call for the Batasang Pambansa to convene as a constituent
assembly to propose amendments to the Constitution (Proclamation No. 2040 dated
December 5, 1980).

It cannot be denied that seeking constitutional changes through the means

sanctioned by the Constitution constitutes a program of government imbued with the
nature of highest importance. The President/Prime Minister initiated this program of
constitutional remaking. It is, therefore, his corrollary prerogative to enlighten the
people on the sense, significance, necessity and nuance of the constitutional
amendments which he wanted the people to support. It would be an Idle, if not
absurd proposition, to declare that the President/Prime Minister is 'responsible for the
program of government and the guidelines of policy' and yet deprive him of the right
and opportunity to inform and enlighten the people of the rationale of such initiatives
without at the same time granting the same right to the opposition.

Under our Constitution the President/Prime Minister has no counter-part, not even
the Opposition still waiting in the uncertain wings of power.

This, precisely, was what President Marcos sought to accomplish through the
"Pulong-Pulong Pambansa" last March 12, 1981. In the letter dated March 10, 1981
by Messrs. Roxas and Laurel, it was claimed that the program was the nationwide
"Pulong-Pulong sa Pangulo" (Emphasis supplied). This is an admission that the
"Pulong-Pulong" was for the "Pangulo", not as head of a political party but as
President/Prime Minister.

This program "Pulong-Pulong sa Pangulo" is of long standing and has been used by
President/Prime Minister Marcos to bring to the attention of the people certain
matters that need to be understood by them. For instance, the President used this
program once to explain to the people the increase in the price of gasoline and other
petroleum products. The program 'Pulong-Pulong sa Pangulo' is not a political or
partisan vehicle but an innovative system of participatory democracy where the
President as leader of the nation enunciates certain programs or policies and
thereafter subjected to interrogation by panelists (common men and women) in
various strategic places. This is why the title is 'Pulong-Pulong'. It is not a one way
arrangements; its format is intended to result in effective multi-way consultation
between the leader of the nation and the people.

The UNIDO or any of its leaders does not have the same constitutional prerogatives
vested in the President/Prime Minister as above discussed. As such, it has no right to
'demand' equal coverage by media accorded President Marcos.

The UNIDO, however, is free to enter into appropriate contracts with the TV or radio
stations concerned. This Commission, however, cannot direct these media to grant
free use of their facilities. First of all, the Comelec cannot assume dictatorial powers
and secondly, the rule of equal time for campaigning as to duration and quality is not
applicable under the circumstances of this case, for the reasons above-stated.

WHEREFORE, premises considered, the "demand" of the UNIDO is hereby denied.

Let the Executive Director cause the implementation of this resolution.

SO ORDERED.

xxx xxx xxx

This is to certify that the foregoing is a true and correct excerpt from the minutes of
the Session of the Commission held on March 18, 1981.

(Sgd). RUPERTO P.
EVANGELISTA

Secret
ary of
the
Commi
ssion.

6. Petitioner UNIDO thru its undersigned counsel addressed its letter dated March
20, 1981 as its "motion for reconsideration" of the COMELEC Resolution of March
18, 1981 (Annex "B") and submitted six (6) reasons why said Resolution should
be reconsidered, and the request or demand of petitioner should be granted for
nationwide coverage of its public meeting at Plaza Miranda on Saturday, March 21,
1981, similar or equal to the nationwide coverage of the "Pulong-Pulong" of March
12, 1981. A copy of said letter of March 20, 1981 as petitioner's motion for
reconsideration is hereto attached to form an integral part of this Petition as Annex
'C';

Annex "C" follows:

M
a
r
c
h
2
 0
,
1
9
8
1

The Commission on Elections

Manila

Gentlemen:

UNIDO respectfully submits this Motion for Reconsideration of the COMELEC

Resolution of March 18, 1981, which denied the letters of UNIDO dated March 10
and 17, 1981 on the following considerations:

1. The Resolution states that the coverage of the "Pulong-Pulong" on March 12,
1981 was extended to Pres. Marcos "in his capacity as President/Prime Minister and
not as head of any political party", who is "responsible ... for the program of
government and shall determine the guidelines of national policy". But the radio and
television coverage on March 12th, did not deal with any "program of government"
nor any 'guideline of national policy". The subject matter of said "Pulong-Pulong"
were a campaign for the approval of the constitutional amendments proposed by
the Interim Batasang Pambansa, for ratification of the people with their "YES" votes.

2. As announced by President Marcos himself and as stated in the letter of UNIDO of

March 10, "President Marcos will lead the campaign for "YES" votes on the proposed
constitutional amendments in the April 7 plebiscite". The radio and television facilities
throughout the country on March 12 was used by President Marcos in his capacity as
political leader of the KBL political party, and not in his capacity as President/Prime
Minister.

3. The Resolution states that Mr. Marcos 'initiated the amendments, he convened the
Batasang Pambansa as a constituent assembly, and he initiated this program of
constitutional remaking'. When the proposed amendments were passed by the
Batasan under his leadership, his function as President/Prime Minister was
completed. His campaign for the ratification by the people of said amendments was
no longer President/Prime Minister, but as the political leader of KBL as the dominant
political party in the Interim Batasang Pambansa.

4. The Resolution states that the name "Pulong-Pulong sa Pangulo" is an admission

that the television and radio coverage of said program on March 12, was utilized by
Mr. Marcos 'not as head of a political party but as President/Prime Minister. The
nature of said program is not determined by its name but by the subject matter
thereof. In fact, it may be considered as a misuse of said program as political
campaign for the purpose of inducing "YES" votes.

5. The Resolution states that COMELEC "cannot direct these media to grant free use
of their facilities", but UNIDO "is free to enter into appropriate contracts with the TV
or radio stations concerned". But Pres. Marcos campaigning for "YES" votes did not
enter into such contracts, but had "free use" of said facilities. For the Resolution to
require UNIDO to pay for time in a national radio and TV coverage is to impose
an "impossible" financial condition.

6. The Resolution states that "COMELEC can not assume dictatorial powers". The
COMELEC as a constitutional body has the constitutional right and power to have its
Resolutions Nos. 1497, 1498 and 1499 on equal opportunity, equal space and equal
time respected and obeyed by all. Otherwise, said Resolutions will be only in form
without any substance.

In view of the foregoing, UNIDO respectfully prays that the Resolution of March 19,
1981 denying the request and demand of UNIDO for equal time, be reconsidered.

It is likewise prayed that the letter requests of UNIDO be granted for nationwide
coverage of its public meeting at Plaza Miranda on Saturday, March 21, 1981.

Very
truly
yours,

SGD.)
AMBR
OSIO
PADIL
LA

L
e
g
a
l
C
o
u
n
s
e
l
,
U
N
I
D
O

7. Respondent COMELEC RESOLVED TO DENY for lack of merit' the letter-motion

for reconsideration (Annex "C") in its Resolution of March 22, 1981 as per its
"Excerpts from the Minutes of the Session of the Commission Held on March 21,
1981". A copy of said Excerpt-Resolution of March 21, 1981 is hereto attached to
form an integral part of this Petition as Annex "D";

Annex "D" reads thus:

 EXCERPT FROM THE MINUTES OF THE SESSION OF THE COMMISSION HELD
ON MARCH 21, 1981

(UNDER THE SAME QUORUM)

xxx xxx xxx

81.56. Considering the allegations in the letter-motion for reconsideration, dated and
filed on March 20, 1981, by the UNIDO thru counsel, and there being no strong or
cogent reasons to disturb the findings and conclusions in the Resolution sought to be
reconsidered, the Commission RESOLVED to DENY the said letter-motion for
reconsideration for lack of merit.

Let the Executive Director inform the parties concerned of this resolution.

SO ORDERED.

xxx xxx xxx

This is to certify that the foregoing is a true and correct excerpt from the minutes of
the session of the Commission held on March 21, 1981.

(SGD.) RUPERTO P.
EVANGELISTA

Secret
ary of
the
Commi
ssion

The basic grounds of the present appeal are stated in the petition thus:

9. Said COMELEC Resolutions. Annexes "B" and "D", are also contrary to the
Constitution and the law, and moreover, are unjust, unfair and inequitable, for said
Resolutions violate the basic principles of equality, good faith and fair play, and they
are not conducive to insure free, orderly and honest elections;

10. The request and/or demand of petitioner for equal broadcast media of its public
meeting or rally at the Plaza Miranda last Saturday, March 21, 1981 (ante par. 4) was
arbitrarily denied by respondent COMELEC in its Resolutions (Annexes "B" and "D").
As the political campaign of the Kilusan ng Bagong Lipunan (KBL) for "YES" votes
used all the radios and televisions in the Pulong Pulong of its political leader,
President Ferdinand E. Marcos, the political campaign for "NO" votes of petitioner
UNIDO should and must be granted the same right and equal use of the same
facilities for the remaining days of the political campaign for "NO" votes up to the
plebiscite on April 7, 1981;

These grounds were eloquently expanded by distinguished counsel for petitioner, Senator Ambrosio
Padilla, during the hearing held in the afternoon of Tuesday, March 31, 1981.
Much as it is indeed desirable and idealistic that the widest and fullest opportunity to be heard and
explain their side should be given to those opposed to the proposed constitutional amendments,
there are certain inexorable rules and principles that govern the situation at hand which, no matter in
what direction one's sympathies may be inclined, have to be observed in the best interests of all
concerned as this Court sees them. Indubitably, the proposed changes of the Charter are of deep
and transcendental importance, since they will affect not only the structure of government and the
democratic institutions and ideals vis-a-vis the presidential and parliamentary systems to which our
people have been exposed up to the present, and they could outlast most of us and our children and
our children's children. Quite a number of those Ideals and institutions are fondly cherished and
enshrined as sacred by some respectable elements in the country, admittedly as knowledgeable and
patriotic as those who are advocating their alteration or modification. It is obvious that the proposed
constitutional changes are purported to establish rather drastic innovations in the distribution of at
least the executive and legislative powers of the national government, in an avowedly indigenous
manner more responsive and attuned not only to the mores, modes and idiosyncracies of our people
and the prevailing national and international circumstances, which evidently require unusual means
to preserve and defend the state and the territorial integrity of the country, albeit such proposed
reforms maintain fundamentally the republican and democratic character of our system of
government. Thus, We reiterate, that the more the people are adequately informed about the
proposed amendments, their exact meaning, implications and nuances, the better. Herein lies the
apparent plausibility of petitioner's pose.

There are, however, certain norms which even petitioner and those that compose it know very well
that this Court, all the amplitude of its prerogatives notwithstanding cannot disregard. Denial of due
process is considered generally as the first and the most valued right of everyone under the Bill of
Rights. For this Court to mandate the Comelec, assuming We had such power, having in view the
constriction of the Supreme Court's authority over the actuations of the Comelec under the new
constitution as discoursed by Us in Aratuc vs. Comelec, G.R. Nos. L-49705-09, February 8, 1979, 88
SCRA 251, petitioner evidently overlooks the fact that the television and radio stations they refer to
in their petition who will be directly affected by any injunction of the Comelec upon Our orders are
not parties to this case. It is elementary, to state the obvious, that in the premises, We would be
over-reaching the bounds of our constitutional powers if We acceded to petitioner request, absent
such indispensable parties. In fact, petitioner has not shown, for apparently they have not done so,
that they have requested any TV or radio station to give them the same time and style of "pulong-
pulong" as that which they afforded the President on March 21, 1981 and that their request has been
denied. No doubt the Constitution and the Election Code provisions as well as the general Comelec
resolution cited by petitioner's counsel may be availed of, but since, We have not been informed of
the circumstances under which the President was accorded the privilege which petitioner wants to
be equally granted to them, We are not even in a position to determine under what definite terms the
order prayed for should be issued by Us, considering there are other groups and aggrupations not to
speak of individuals who are similarly situated as petitioner who would also want to be heard. We
are afraid We would be expecting from the TV and radio networks more than what conceivably the
Charter, the law and the Comelec resolutions contemplate, if We granted what UNIDO wants and
did less for those other oppositors to the amendments who may come to Us.

Anent the equal time, equal space and equal quality of exposure claimed by petitioner, it should be
informative to quote the pertinent constitutional provisions, laws and Comelec resolutions:

Section 5 of Article XII-C of the Constitution circumscribes the relevant powers of the Comelec this
wise:

SEC. 5. The enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government, or any
 subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation, may be supervised or regulated by the Commission during the
election period for the purpose of ensuring free, orderly, and honest elections.

Section 41 of the Election Code of 1978 pertinently reads as follows:

SEC. 41. Regulation of election propaganda through mass media. – (a) The
Commission shall promulgate rules and regulations regarding the sale of air time for
political purposes during the campaign period to insure that time equal as to duration
and quality is available to all candidates for the same office or political parties,
groups or aggrupations at the same rates or given free of charge; that such rates are
reasonable and not higher than those charged other buyers or users of air time for
non-political purposes; that the provisions of this Code regarding the limitation of
expenditures by candidates and contributions by private persons and certain classes
of corporations, entities and institutions are effectively enforced; that said radio
broadcasting and television stations shall not be allowed to schedule any program or
permit any sponsor to manifestly favor or oppose any candidate or political party,
group or aggrupation by unduly or repeatedly referring to or including said candidate
and/or political party, group or aggrupation respecting, however in all instances the
right of said stations to broadcast accounts of significant or newsworthy events and
views on matters of public interest.

Sections 7 and 8 of Comelec Resolution No. 1468 read thus:

SEC. 7. Free air time. – Any radio broadcasting or television station that grants free
of charge the use of air time to any supporter, oppositors political party, group or
aggritpution shall also give similar air time free of charge to other supporters,
oppositors, political party group or aggrupations except when such use of air -time is
part of a news program or coverage involving a newsworthy event.

A radio, television station giving air time free of charge to any supporter, oppositor,
political party/group for campaign purposes shall inform the Commission of such fact
within two days from the use of such free time.

SEC. 8. Failure to agree on equal time. – In case the supporter, oppositor, political
party group and the radio-television station, despite mediation by the Ministry of
Public Information, cannot agree on the equal time to be sold or given free, the
controversy shall be referred to the Commission whose decision on the matter shall
be final and immediately executory.

To begin with, We cannot agree with the restrictive literal interpretation the Solicitor General would
want to give to the "free orderly and honest elections" clause of Section 5, Article XII- C above-
quoted. Government Counsel posits that the said clause refers exclusively to the manner in which
the elections are conducted, that is to say, with the manner in which the voters are supposed to be
allowed to vote. Perhaps, such a theory may hold insofar as ordinary elections of officials are
concerned. But the Court views the provision as applicable also to plebiscites, particularly one
relative to constitutional amendments. Be it borne in mind that it has been one of the most steadfast
rulings of this Court in connection with such plebiscites that it is indispensable that they be properly
characterized to be fair submission – by which is meant that the voters must of necessity have had
adequate opportunity, in the light of conventional wisdom, to cast their votes with sufficient
understanding of what they are voting on. We are of the firm conviction that the charter's reference
to honest elections connotes fair submission in a plebiscite. It cannot be otherwise, for then the
importance of suffrage for the election of officials would be more significantly valued than voting on
the ratification of the constitution or any amendment thereof. We cannot yield to such an unorthodox
constitutional concept that relegates the fundamental law of the land which is the source of all
powers of the government to a level less valued than the men who would run the same. When a
voter either gives or denies his assent to a change of the existing charter of his rights and liberties
and the existing governmental form as well as the powers of those who are to govern him, he
virtually contributes his little grain of sand to the building of the nation and renders his share in
shaping the future of its people, including himself, his family and those to come after them. Indeed,
nothing can be of more transcerdental importance than to vote in a constitutional plebiscite.

In consequence of the foregoing considerations, We opine and so hold that the provisions of all
election laws regulating propaganda through the mass media, for example, Section 41 of the
Election Code of 1978, must be deemed applicable to plebiscites. Therefore, it is the duty of the
Comelec to see to it that the sale of air time by TV and radio stations insures that time equal as to
duration and quality is available to all candidates for the same office or political parties, groups or
aggrupations at the same rates or given free of charge.

We cannot share the Solicitor General's submission that the above view would subvert or curtail
correspondingly the freedom of speech and of the press to which the TV and radio station owners
are entitled. Rather, it is Our considered opinion and We so hold that if such be the effect of the
Comelec regulations, it is because they must have been contemplated to precisely constitute an
exception to freedom of speech and press clause, on account of considerations more paramount for
the general welfare and public interest, which exceptions after all would operate only during limited
periods, that is, during the duration of the election Campaign fixed in the charter itself and/or by law.

The Solicitor General points, however, to the explicit proviso in Section 41 to the effect that the
equal-time-equal-space privilege must "respect, – in all instances the right of said stations to
broadcast accounts of significant or newsworthy events and views on matters of public interest", and
suggests that the TV and radio stations may not be blamed for considering the "Pulong-Pulong sa
Pangulo" as coming within said proviso. In other words, it is contended that such choice by them
may not then be subjected to the equal time equal space regulations. On the other hand, counsel for
petitioner maintains that it is not fair to deem the President's "Pulong-Pulong" as a "significant and
noteworthy (an) events and views on matters of public interest" just because the President
campaigned for "Yes" votes, while a "Pulong-Pulong" by those who would appeal for "No" votes
cannot be similarly characterized.

Our holding in respect to such conflicting contentions is that, while it may not be exactly proper to
say, as the Comelec resolution in question puts it, that "(u)nder our Constitution, the President-Prime
Minister has no counterpart, not even the Opposition still waiting in the uncertain wings of power", it
is undeniable and but natural that the head of state of every country in the world must from the very
nature of his position, be accorded certain privileges not equally available to those who are opposed
to him in the sense that, since the head of state has the grave and tremendous responsibility of
planning and implementing the plan of government itself, either by virtue of the popular mandate
given to him under the corresponding provisions of the Constitution and the laws or any other duly
recognized grant of power and authority, the opposition cannot be placed at par with him, since
logically the opposition can only fiscalize the administration and punctualize its errors and
shortcomings to the end that when the duly scheduled time for the people to exercise their
inalienable power to make a better choice, the opposition may have the chance to make them
accept the alternative they can offer.

Therefore, when the head of state is afforded the opportunity or when he feels it incumbent upon him
to communicate and dialogue with the people on any matter affecting the plan of government or any
other matter of public interest, no office or entity of the government is obliged to give the opposition
the same facilities by which its contrary views may be ventilated. lf the opposition leaders feel any
sense of responsibility in the premises to counter the administration, it is up to them – and they are
free – to avail of their own resources to accomplish their purpose. But surely, it is not for the
administration to hand them on a silver platter the weapon they need. We are not aware that there is
any existing system of government anywhere in the world which is mandated to be so
accommodating and generous to the opponents of the current administrators of the national affairs.

In instances where the head of state is at the same time the president of the political party that is in
power, it does not necessarily follow that he speaks with two voices when he dialogues with the
governed. Unquestionably, there are matters of vital public interest wherein partisan considerations
could in some degree be involved, but then such partisan interest would be purely secondary. The
President/Prime Minister of the Philippines is the political head of all the people. His is the sacred
responsibility to protect and defend the security of all the people, the stability of the government and
the integrity of the national territory, not only for the tenure to which he has been elected but for all
times. When, as in the instant situation, he deems it warranted by the circumstances to present to
them a plan of government which includes the modification of the existing structure of government
together with its concomitant allocation of governmental powers, it is not only his right but his duty to
take the people directly into his confidence and impart to them to the fullest measure of his capacity
and by all available adequate means the reasons therefor and the corrollarily advantages thereof to
their welfare. The opposition, if it opines otherwise, has naturally the indisputable right to make every
effort to thwart his objective. But, surely, this is far from saying that it is the duty of the administration
to generously grant to them the means to wage their campaign against it.

The long and short of the foregoing is that it is not true that in speaking as he did in the "Pulong-
Pulong sa Pangulo" on March 21, 1981, he spoke not only as President-Prime Minister but also as
head of the KBL, the political party now in power. It was in the former capacity that he did so. If in
any way, what he said would induce the people to accept the proposed amendments, his exposition
of the advantages thereof was not to promote the interest of that party but to improve the quality of
the government thereby to enable him or anyone who may be chosen by the people to take his place
to better serve the welfare not only of the KBL but of all of us, including those who are minded, for
reasons of their own, to oppose the amendments.

In any event, petitioner has failed to persuade Us that the grant of the prayer in its petition
compellingly pertains to it under the provisions of the Constitution, the Election Code of 1978 and the
general resolutions and regulations of respondent Comelec regarding equal opportunity among
contending political parties, groups, aggrupations or individuals. The Comelec has indeed the power
to supervise and regulate the mass media in such respect, but such authority arises only when there
is a showing that any sector or member of the media has denied to any party or person the right to
which it or he is entitled. What is more, there are other political parties similarly situated as petitioner.
To grant to petitioner what it wants, it must necessarily follow that such other parties should also be
granted. As already indicated earlier, that would be too much to expect from the media that has also
its own right to earn its wherewithal. But most importantly, the Comelec is not supposed to dictate to
the media when its prerogatives in the premises is not invoked in the proper manner, that is, after
denial to the petitioner by the media is shown. And then, it is an inalienable right of the sector or
member of the media concerned to be duly heard as an indispensable party.

Thus, for being beyond what the charter, the laws and pertinent Comelec regulations contemplate,
for being more than what the opposition is duly entitled vis-a-vis the duty, obligation and/or privilege
inherent in the head of state to directly dialogue with the sovereign people when the occasion
demands, for being impractical under prevailing circumstances, and for its failure to join in the instant
petition indispensable parties, thereby depriving the Court of jurisdiction to act, and for these alone
among other reasons which there is hardly time to state herein, the prayer in the instant petition
cannot be granted.

WHEREFORE, the appeal herein is dismissed, without costs.

Aquino, Fernandez and Guerrero, JJ., concur.

Makasiar, J., concurs in the result.

Concepcion Jr., J., took no part.

Abad Santos, J., is on leave.

Separate Opinions

FERNANDO, CJ., concurring:

In the light of the traditional practice, constitutionally sanctioned not only in the Philippines, but also
in the United States and France, a President, even if running for reelection, by virtue of the position
he holds, is necessarily in a more advantageous position. It is easy for him to make use of the media
for the purpose of announcing policies of government and offering the necessary explanations as to
why they should be adopted. In the sense, therefore, that with the petition based on the fact that two
hours were granted the President for his Pulong-Pulong program and therefore, a similar privilege
should be accorded to petitioner, it cannot be said that respondent Commission on Elections abused
its discretion, much less in a grave manner, in denying the request of petitioner. Hence this
concurrence with the opinion of the Court.

There is, however, to my mind, certain considerations that should not be ignored by respondent
Commission in the utilization of what has come to be known as the TV and Radio "Comelec Time."
The vitality of the democratic process and the support extended by the people to the national
leadership depend on the understanding of the measures undertaken by government. It is to the
credit of the present administration that all issues of public interest are fully ventilated. Considering
how transcendental in character are the proposed amendments, it is not only desirable but to my
mind of the essence of constitutionalism that every government agency be fully aware of the
importance of the basic concepts that lie at the foundations of our political institutions. In the
electoral process, the equal protection guarantee is of the utmost significance. it connotes fairness to
all contending parties whenever the electorate is called upon to express its choice whether of men or
on issues. The Constitution has seen to that. Thus: "The enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities, media of communication or
information, an grants, special privileges, or concessions granted by the Government, or any
subdivision, agency, or instrumentality thereof, including any government-owned or controlled
corporation, may be supervised or regulated by the Commission during the election period for the
purpose of ensuring free, orderly, and honest elections." 1 Also, there is this provision in the 1973
Constitution: "Bona fide candidates for any public office shall be free from any form of harrassment
and discrimination." 2 There is, moreover, a specific provision in the 1978 Election Code. 3 Thus: "...
In all instances, the Commission shall supervise the use and employment of press, radio and
television facilities so as to give candidates equal opportunities under equal circumstances to make
known their qualifications and their stand on public issues within the limits set forth in this Code on
election spending." 4

It is my submission that while this paragraph speaks of candidates as does the constitutional
provision cited, it lends itself to an interpretation allowing its application to the present situation.
Respondent Commission can take pride in the fact that it has not been recreant to the trust imposed
on it by virtue of the above provisions. The resolutions brought to the attention of this Court are
indicative of how far it has gone to avoid any valid charge of being discriminatory or unfair. It Will, in
my view, inspire even greater confidence if in the few remaining days before the plebiscite, it
exercises its supervisory authority to assure that the mass media accord equal access to the views
espoused by petitioner as well as other opposition groups. That would be a signal contribution to the
cause of free and honest elections as well as free speech.

I am authorized to state that Justice Melencio-Herrera concurs in this opinion.

De Castro, Melencio-Herrera, JJ., concur.

TEEHANKEE, J., dissenting:

I am constrained to dissent from the dismissal of the petition at bar and to vote that it be granted due
course.

In the cases of Occena vs. Comelec (G.R. No. 56350) and Gonzales us. National Treasurer (G.R.
No. 56404), jointly decided on this date, April 4, 1981, I voted to enjoin the holding of the plebiscite
scheduled for April 7, 1981 on the ground, among others, that the controlling doctrine of fair and
proper submission as laid clown by the Court in Tolentino vs. Comelec1 specially in the light of the
proposed complex, complicated and radical changes of our structure of government requires that the
people be given adequate time and information as to the "i amendments to be voted upon for their
conscietious deliberation and intelligent consent or rejection.

As stressed by retired Justice Conrado V. Sanchez in his separate opinion in Gonzales vs.
Comelec2 , "(W)e 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. ...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."

It was in response to these strictures that the 1971 Constitutional Convention provided in Article XII
(C), section 5 of the 1973 Constitution that "(T)he enjoyment or utilization of all franchises or permits
for the operation of transportation and other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the Government, or any subdivision, agency,
or instrumentality thereof, including any government-owned or controlled corporation, may be
supervised or regulated by the Commission during the election period for the purpose of ensuring
free, orderly, and honest elections." Likewise, the Election Code of 1978 provided for regulation by
the Comelec of election propaganda through the mass media and the Comelec itself issued its
implementing Resolution No. 1468, the pertinent provisions of which are copied in full in the majority
decision. 3
In consonance with the views expressed by the Chief Justice in his separate opinion, respondent
Comelec is fully authorized (as it has done with its "Comelec Time" on TV and radio) to issue all
reasonable measures to the mass media, particularly to the government-owned television and radio
stations, to grant petitioners as much time and space as is feasible (although understandably less
than the President-Prime Minister as head of state and government) to air and disseminate their
contrary views on the proposed amendments and enable the voter to exercise intelligently his choice
on acceptance or rejection of "changes of the existing charter of his rights and liberties and the
existing government form as well as the powers of those who are to govern him" – to borrow the
language of the ponente Mr. Justice Barredo. 4

Here we are, on the 36th day after the adoption by the Interim Batasang Pambansa of the proposed
ammendments with only two more days to go before plebiscite day on April 7, 1981; yet, even
lawyers are known to "have a difficult time zeroing in on the practical applications of the [proposed]
changes in the basic law of the land."5

The Comelec would but faithfully discharge its Constitutional duty if it fully implemented the cited
statute and regulations of its own to assure the widest dissemination of the affirmative and negative
views on the proposed amendments. The technical questions raised in the majority decision as to
the non-impleader of the mass media as parties and other groups and aggrupations who also want
to be heard are mere administrative problems which the Constitution has precisely entrusted to the
Comelec to resolve and determine fairly and equitably.

Separate Opinions

FERNANDO, CJ., concurring:

In the light of the traditional practice, constitutionally sanctioned not only in the Philippines, but also
in the United States and France, a President, even if running for reelection, by virtue of the position
he holds, is necessarily in a more advantageous position. It is easy for him to make use of the media
for the purpose of announcing policies of government and offering the necessary explanations as to
why they should be adopted. In the sense, therefore, that with the petition based on the fact that two
hours were granted the President for his Pulong-Pulong program and therefore, a similar privilege
should be accorded to petitioner, it cannot be said that respondent Commission on Elections abused
its discretion, much less in a grave manner, in denying the request of petitioner. Hence this
concurrence with the opinion of the Court.

There is, however, to my mind, certain considerations that should not be ignored by respondent
Commission in the utilization of what has come to be known as the TV and Radio "Comelec Time."
The vitality of the democratic process and the support extended by the people to the national
leadership depend on the understanding of the measures undertaken by government. It is to the
credit of the present administration that all issues of public interest are fully ventilated. Considering
how transcendental in character are the proposed amendments, it is not only desirable but to my
mind of the essence of constitutionalism that every government agency be fully aware of the
importance of the basic concepts that lie at the foundations of our political institutions. In the
electoral process, the equal protection guarantee is of the utmost significance. it connotes fairness to
all contending parties whenever the electorate is called upon to express its choice whether of men or
on issues. The Constitution has seen to that. Thus: "The enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities, media of communication or
information, an grants, special privileges, or concessions granted by the Government, or any
subdivision, agency, or instrumentality thereof, including any government-owned or controlled
corporation, may be supervised or regulated by the Commission during the election period for the
purpose of ensuring free, orderly, and honest elections." 1 Also, there is this provision in the 1973
Constitution: "Bona fide candidates for any public office shall be free from any form of harrassment
and discrimination." 2 There is, moreover, a specific provision in the 1978 Election Code. 3 Thus: "...
In all instances, the Commission shall supervise the use and employment of press, radio and
television facilities so as to give candidates equal opportunities under equal circumstances to make
known their qualifications and their stand on public issues within the limits set forth in this Code on
election spending." 4

It is my submission that while this paragraph speaks of candidates as does the constitutional
provision cited, it lends itself to an interpretation allowing its application to the present situation.
Respondent Commission can take pride in the fact that it has not been recreant to the trust imposed
on it by virtue of the above provisions. The resolutions brought to the attention of this Court are
indicative of how far it has gone to avoid any valid charge of being discriminatory or unfair. It Will, in
my view, inspire even greater confidence if in the few remaining days before the plebiscite, it
exercises its supervisory authority to assure that the mass media accord equal access to the views
espoused by petitioner as well as other opposition groups. That would be a signal contribution to the
cause of free and honest elections as well as free speech.

I am authorized to state that Justice Melencio-Herrera concurs in this opinion.

De Castro and Melencio-Herrera, JJ., concur.

TEEHANKEE, J., dissenting:

I am constrained to dissent from the dismissal of the petition at bar and to vote that it be granted due
course.

In the cases of Occena vs. Comelec (G.R. No. 56350) and Gonzales us. National Treasurer (G.R.
No. 56404), jointly decided on this date, April 4, 1981, I voted to enjoin the holding of the plebiscite
scheduled for April 7, 1981 on the ground, among others, that the controlling doctrine of fair and
proper submission as laid clown by the Court in Tolentino vs. Comelec1 specially in the light of the
proposed complex, complicated and radical changes of our structure of government requires that the
people be given adequate time and information as to the "i amendments to be voted upon for their
conscietious deliberation and intelligent consent or rejection.

As stressed by retired Justice Conrado V. Sanchez in his separate opinion in Gonzales vs.
Comelec2 , "(W)e 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. ...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."

It was in response to these strictures that the 1971 Constitutional Convention provided in Article XII
(C), section 5 of the 1973 Constitution that "(T)he enjoyment or utilization of all franchises or permits
for the operation of transportation and other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the Government, or any subdivision, agency,
or instrumentality thereof, including any government-owned or controlled corporation, may be
supervised or regulated by the Commission during the election period for the purpose of ensuring
free, orderly, and honest elections." Likewise, the Election Code of 1978 provided for regulation by
the Comelec of election propaganda through the mass media and the Comelec itself issued its
implementing Resolution No. 1468, the pertinent provisions of which are copied in full in the majority
decision. 3

In consonance with the views expressed by the Chief Justice in his separate opinion, respondent
Comelec is fully authorized (as it has done with its "Comelec Time" on TV and radio) to issue all
reasonable measures to the mass media, particularly to the government-owned television and radio
stations, to grant petitioners as much time and space as is feasible (although understandably less
than the President-Prime Minister as head of state and government) to air and disseminate their
contrary views on the proposed amendments and enable the voter to exercise intelligently his choice
on acceptance or rejection of "changes of the existing charter of his rights and liberties and the
existing government form as well as the powers of those who are to govern him" – to borrow the
language of the ponente Mr. Justice Barredo. 4

Here we are, on the 36th day after the adoption by the Interim Batasang Pambansa of the proposed
ammendments with only two more days to go before plebiscite day on April 7, 1981; yet, even
lawyers are known to "have a difficult time zeroing in on the practical applications of the [proposed]
changes in the basic law of the land."5

The Comelec would but faithfully discharge its Constitutional duty if it fully implemented the cited
statute and regulations of its own to assure the widest dissemination of the affirmative and negative
views on the proposed amendments. The technical questions raised in the majority decision as to
the non-impleader of the mass media as parties and other groups and aggrupations who also want
to be heard are mere administrative problems which the Constitution has precisely entrusted to the
Comelec to resolve and determine fairly and equitably.

Footnotes

Fernando, CJ.

1 Article XII, Sec. 5.

2 Ibid, Sec. 9 (1).

3 Presidential Decree No. 1296.

4 Ibid, Sec. 41. This is the last paragraph only.

Teehankee, J.

1 41 SCRA 702 and Resolution denying motion for reconsideration dated November
4, 1971.

2 21 SCRA 774.

3 At page 14 thereof.

4 Decision, at page 15.

5 Sunday Express Weekend Magazine of March 29, 1981.

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

JOSUE JAVELLANA, petitioner,

vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY
OF JUSTICE AND THE SECRETARY OF FINANCE, respondents.

G.R. No. L-36164 March 31, 1973

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U.

MIRANDA, EMILIO DE PERALTA AND LORENZO M. TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF
JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE,
THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF
PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE COMMISSIONER OF CIVIL
SERVICE, respondents.

G.R. No. L-36165 March 31, 1973.

GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL,

RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his
capacity as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief
of Staff of the Armed Forces of the Philippines; TANCIO E. CASTAÑEDA, in his capacity as
Secretary General Services; Senator GIL J. PUYAT, in his capacity as President of the
Senate; and Senator JOSE ROY, his capacity, as President Pro Tempore of the of the
Senate, respondents.

G.R. No. L-36236 March 31, 1973

EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press
Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR
GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondents.

G.R. No. L-36283 March 31, 1973

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL
M. GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL
DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR
GENERAL, respondents.

Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.

Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo
Roxas, et al.

Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.

Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.

Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.

Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor
Reynato S. Puno for other respondents.

RESOLUTION

CONCEPCION, C.J.:

The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite
cases.

Background of the Plebiscite Cases.

The factual setting thereof is set forth in the decision therein rendered, from which We quote:

On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was
amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a
Convention to propose amendments to the Constitution of the Philippines. Said
Resolution No. 2, as amended, was implemented by Republic Act No. 6132,
approved on August 24, 1970, pursuant to the provisions of which the election of
delegates to said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1, 1971. While the
Convention was in session on September 21, 1972, the President issued
Proclamation No. 1081 placing the entire Philippines under Martial Law. On
November 29, 1972, the Convention approved its Proposed Constitution of the
Republic of the Philippines. The next day, November 30, 1972, the President of the
Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines proposed by
the 1971 Constitutional Convention, and appropriating funds therefor," as well as
setting the plebiscite for said ratification or rejection of the Proposed Constitution on
January 15, 1973.

Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R.
No. L-35925, against the Commission on Elections, the Treasurer of the Philippines
and the Auditor General, to enjoin said "respondents or their agents from
implementing Presidential Decree No. 73, in any manner, until further orders of the
Court," upon the grounds, inter alia, that said Presidential Decree "has no force and
effect as law because the calling ... of such plebiscite, the setting of guidelines for the
conduct of the same, the prescription of the ballots to be used and the question to be
answered by the voters, and the appropriation of public funds for the purpose, are, by
the Constitution, lodged exclusively in Congress ...," and "there is no proper
submission to the people of said Proposed Constitution set for January 15, 1973,
there being no freedom of speech, press and assembly, and there being no sufficient
time to inform the people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad

against the Commission on Elections (Case G.R. No. L- 35929) on December 11,
1972, by Gerardo Roxas, et al., against the Commission on Elections, the Director of
Printing, the National Treasurer and the Auditor General (Case G.R. L-35940), by
Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the
Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez, et al. against the
National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the
Treasurer of the Philippines, the Auditor General and the Director of Printing (Case
G.R. No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against the
Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by
Jacinto Jimenez against the Commission on Elections, the Auditor General, the
Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R.
No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the
Budget Commissioner, the National Treasurer and the Auditor General (Case G.R.
No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against the
Commission on Elections, the Secretary of Education, the National Treasurer and the
Auditor General (Case G.R. No. L-35979).

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

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

In view of these events relative to the postponement of the aforementioned

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

"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as soon as
possible, preferably not later than January 15, 1973." It was alleged in said
motion, inter alia:

"6. That the President subsequently announced the issuance of Presidential Decree
No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain
public questions [Bulletin Today, January 1, 1973];

"7. That thereafter it was later announced that "the Assemblies will be asked if they
favor or oppose —

[1] The New Society;

[2] Reforms instituted under Martial Law;

[3] The holding of a plebiscite on the proposed new Constitution and

when (the tentative new dates given following the postponement of
the plebiscite from the original date of January 15 are February 19
and March 5);

[4] The opening of the regular session slated on January 22 in

accordance with the existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]

"8. That it was later reported that the following are to be the forms of the questions to
be asked to the Citizens Assemblies: —

[1] Do you approve of the New Society?

[2] Do you approve of the reform measures under martial law?

[3] Do you think that Congress should meet again in regular session?

[4] How soon would you like the plebiscite on the new Constitution to
be held? [Bulletin Today, January 5, 1973].

"9. That the voting by the so-called Citizens Assemblies was announced to take
place during the period from January 10 to January 15, 1973;

"10. That on January 10, 1973, it was reported that on more question would be
added to the four (4) question previously announced, and that the forms of the
question would be as follows: —
 [1] Do you like the New Society?

[2] Do you like the reforms under martial law?

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

[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an
additional question.]

"11. That on January 11, 1973, it was reported that six (6) more questions would be
submitted to the so-called Citizens Assemblies: —

[1] Do you approve of the citizens assemblies as the base of popular

government to decide issues of national interests?

[2] Do you approve of the new Constitution?

[3] Do you want a plebiscite to be called to ratify the new

Constitution?

[4] Do you want the elections to be held in November, 1973 in

accordance with the provisions of the 1935 Constitution?

[5] If the elections would not be held, when do you want the next
elections to be called?

[6] Do you want martial law to continue? [Bulletin Today, January 11,
1973; emphasis supplied]

"12. That according to reports, the returns with respect to the six (6) additional
questions quoted above will be on a form similar or identical to Annex "A" hereof;

"13. That attached to page 1 of Annex "A" is another page, which we marked as
Annex "A-1", and which reads: —

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation

in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it

is to be convened at all, it should not be done so until after at least
 seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered

the plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the

new Constitution should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections

will be enough for stability to be established in the country, for
reforms to take root and normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want

him to exercise his powers with more authority. We want him to be
strong and firm so that he can accomplish all his reform programs
and establish normalcy in the country. If all other measures fail, we
want President Marcos to declare a revolutionary government along
the lines of the new Constitution without the ad interim Assembly."

"Attention is respectfully invited to the comments on "Question No. 3," which reads:
—

QUESTION No. 3

The vote of the Citizens Assemblies should be considered the

plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the

new Constitution should be deemed ratified.

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.

14. That, in the meantime, speaking on television and over the radio, on January 7,
1973, the President announced that the limited freedom of debate on the proposed
Constitution was being withdrawn and that the proclamation of martial law and the
orders and decrees issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that the question added
in the last list of questions to be asked to the Citizens Assemblies, namely: —

Do you approve of the

New Constitution? —

in relation to the question following it: —

Do you still want a plebiscite to be

called to ratify the new Constitution?"
—

would be an attempt to by-pass and short-circuit this Honorable Court before which
the question of the validity of the plebiscite on the proposed Constitution is now
pending;

"16. That petitioners have reason to fear, and therefore allege, that if an affirmative
answer to the two questions just referred to will be reported then this Honorable
Court and the entire nation will be confronted with a fait accompli which has been
attained in a highly unconstitutional and undemocratic manner;

"17. That the fait accompli would consist in the supposed expression of the people
approving the proposed Constitution;

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

"19. That, in such a situation the Philippines will be facing a real crisis and there is
likelihood of confusion if not chaos, because then, the people and their officials will
not know which Constitution is in force.

"20. That the crisis mentioned above can only be avoided if this Honorable Court will
immediately decide and announce its decision on the present petition;

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

At about the same time, a similar prayer was made in a "manifestation" filed by the
petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.,"
and L-35942, "Sedfrey A. Ordoñez, et al. v. The National Treasurer, et al."

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

"... that a restraining order be issued enjoining and restraining

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

In support of this prayer, it was alleged —

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

"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and
void particularly insofar as such proceedings are being made the basis of a
supposed consensus for the ratification of the proposed Constitution because: —

[a] The elections contemplated in the Constitution, Article XV, at

which the proposed constitutional amendments are to be submitted
for ratification, are elections at which only qualified and duly
registered voters are permitted to vote, whereas, the so called
Citizens' Assemblies were participated in by persons 15 years of age
and older, regardless of qualifications or lack thereof, as prescribed in
the Election Code;

[b] Elections or plebiscites for the ratification of constitutional

amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;

[c] The Election Code makes ample provisions for free, orderly and
honest elections, and such provisions are a minimum requirement for
elections or plebiscites for the ratification of constitutional
 amendments, but there were no similar provisions to guide and
regulate proceedings of the so called Citizens' Assemblies;

[d] It is seriously to be doubted that, for lack of material time, more

than a handful of the so called Citizens' Assemblies have been
actually formed, because the mechanics of their organization were
still being discussed a day or so before the day they were supposed
to begin functioning: —

"Provincial governors and city and municipal mayors

had been meeting with barrio captains and community
leaders since last Monday [January 8, 1973) to thresh
out the mechanics in the formation of the Citizens
Assemblies and the topics for discussion." [Bulletin
Today, January 10, 1973]

"It should be recalled that the Citizens' Assemblies were ordered formed only at the
beginning of the year [Daily Express, January 1, 1973], and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of
sufficient guidelines for organization, it is too much to believe that such assemblies
could be organized at such a short notice.

"5. That for lack of material time, the appropriate amended petition to include the
additional officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as noted in the
Urgent Motion of January 12, 1973, the submission of the proposed Constitution to
the Citizens' Assemblies was not made known to the public until January 11, 1973.
But be that as it may, the said additional officials and agencies may be properly
included in the petition at bar because: —

[a] The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or instruction.

so that Presidential Decree No. 86, insofar at least as it attempts to submit the
proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is
properly in issue in this case, and those who enforce, implement, or carry out the
said Presidential Decree No. 86. and the instructions incidental thereto clearly fall
within the scope of this petition;

[b] In their petition, petitioners sought the issuance of a writ of

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

[c] Petitioners prayed for such other relief which may be just and
equitable. [p. 39, Petition].
 "Therefore, viewing the case from all angles, the officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be
reached by the processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections has under our laws the
power, among others, of: —

(a) Direct and immediate supervision and control over national,

provincial, city, municipal and municipal district officials required by
law to perform duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this Code ..."
[Election Code of 1971, Sec. 3].

"6. That unless the petition at bar is decided immediately and the Commission on
Elections, together with the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President the results of the
alleged voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of freedom
an democracy, and the petitioners herein because:

[a] After the result of the supposed voting on the questions mentioned
in paragraph 1 hereof shall have been announced, a conflict will arise
between those who maintain that the 1935 Constitution is still in
force, on the one hand, and those who will maintain that it has been
superseded by the proposed Constitution, on the other, thereby
creating confusion, if not chaos;

[b] Even the jurisdiction of this Court will be subject to serious attack
because the advocates of the theory that the proposed Constitution
has been ratified by reason of the announcement of the results of the
proceedings of the so-called Citizens' Assemblies will argue that,
General Order No. 3, which shall also be deemed ratified pursuant to
the Transitory Provisions of the proposed Constitution, has placed
Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction
of this Honorable Court."

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

"BY THE PRESIDENT OF THE PHILIPPINES

"PROCLAMATION NO. 1102

"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE

CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one

Constitutional Convention is subject to ratification by the Filipino people;

"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in

districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;

"WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;

"WHEREAS, responding to the clamor of the people and pursuant to Presidential

Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a plebiscite to be called to ratify the new Constitution?

"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-
one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;

"WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the
new Constitution should already be deemed ratified by the Filipino people;

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

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

"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.

"Done in the City of Manila, this 17th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.
 (Sgd.)
FERDI
NAND
E.
MARC
OS
"Presid
ent of
the
Philippi
nes

"By the President:

"ALEJANDRO MELCHOR
"Executive Secretary"

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

Immediately after the hearing held on January 17, 1973, or since the afternoon of
that date, the Members of the Court have been deliberating on the aforementioned
cases and, after extensive discussions on the merits thereof, have deemed it best
that each Member write his own views thereon and that thereafter the Chief Justice
should state the result or the votes thus cast on the points in issue. Hence, the
individual views of my brethren in the Court are set forth in the opinions attached
hereto, except that, instead of writing their separate opinions, some Members have
preferred to merely concur in the opinion of one of our colleagues.

Then the writer of said decision expressed his own opinion on the issues involved therein, after
which he recapitulated the views of the Members of the Court, as follows:

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

Presidential Decree No. 73.

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando,

Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion
that the issue has become moot and academic, whereas Justices Barredo, Makasiar
and Antonio voted to uphold the validity of said Decree.
3. On the authority of the 1971 Constitutional Convention to pass the proposed
Constitution or to incorporate therein the provisions contested by the petitioners in L-
35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue
has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio
and myself have voted to uphold the authority of the Convention.

4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional
Convention had authority to continue in the performance of its functions despite the
proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold
the same view.

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

6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar,

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

b. Justice Barredo holds that the issue on the constitutionality of

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

c. Justice Zaldivar maintains unqualifiedly that the Proposed

Constitution has not been ratified in accordance with Article XV of the
1935 Constitution, and that, accordingly, it has no force and effect
whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the
issue whether the Proposed Constitution has been ratified by the
people or not, "in the absence of any judicially discoverable and
manageable standards," since the issue "poses a question of fact.

7. On the question whether or not these cases should be dismissed, Justices

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

Accordingly, the Court — acting in conformity with the position taken by six (6) of its members,1 with
three (3) members dissenting,2 with respect to G.R. No. L-35948, only and another
member3 dissenting, as regards all of the cases dismissed the same, without special pronouncement
as to costs.

The Present Cases

Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the
Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said
respondents "and their subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution" — referring to that of 1935. The petition
therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as
"a class suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on
or about January 24, 1973. After reciting in substance the facts set forth in the decision in the
plebiscite cases, Javellana alleged that the President had announced "the immediate
implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter
"are acting without, or in excess of jurisdiction in implementing the said proposed Constitution" upon
the ground: "that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is
without authority to create the Citizens Assemblies"; that the same "are without power to approve the
proposed Constitution ..."; "that the President is without power to proclaim the ratification by the
Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed
Constitution was not a free election, hence null and void."

Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces,
Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the Executive
Secretary, the Secretaries of Finance, Justice, Land Reform, and National Defense, the Auditor
General, the Budget Commissioner, the Chairman of the Presidential Commission on
Reorganization, the Treasurer of the Philippines, the Commission on Elections and the
Commissioner of Civil Service4 on February 3, 1973, by Eddie Monteclaro, personally and as
President of the National Press Club of the Philippines, against the Executive Secretary, the
Secretary of Public Information, the Auditor General, the Budget Commissioner and the National
Treasurer5 and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
Asodisen, Jr. and Raul M. Gonzales,6 against the Executive Secretary, the Secretary of National
Defense, the Budget Commissioner and the Auditor General.

Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H.
Laurel,7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority
Floor Leader of the Senate," and others as "duly elected members" thereof, filed Case G.R. No. L-
36165, against the Executive Secretary, the Secretary National Defense, the Chief of Staff of the
Armed Forces of the Philippines, the Secretary of General Services, the President and the President
Pro Tempore of the Senate. In their petition — as amended on January 26, 1973 — petitioners
Gerardo Roxas, et al. allege, inter alia, that the term of office of three of the aforementioned
petitioners8 would expire on December 31, 1975, and that of the others9 on December 31, 1977; that
pursuant to our 1935 Constitution, "which is still in force Congress of the Philippines "must convene
for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of
its opening session"; that "on said day, from 10:00 A.M. up to the afternoon," said petitioner "along
with their other colleagues, were unlawfully prevented from using the Senate Session Hall, the same
having been closed by the authorities in physical possession and control the Legislative Building";
that "(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative Building were
ordered cleared by the same authorities, and no one was allowed to enter and have access to said
premises"; that "(r)espondent Senate President Gil J. Puyat and, in his absence, respondent
President Pro Tempore Jose Roy we asked by petitioning Senators to perform their duties under the
law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that
the petitioners ready and willing to perform their duties as duly elected members of the Senate of the
Philippines," but respondent Secretary of National Defense, Executive Secretary and Chief of Staff,
"through their agents and representatives, are preventing petitioners from performing their duties as
duly elected Senators of the Philippines"; that "the Senate premise in the Congress of the Philippines
Building ... are occupied by and are under the physical control of the elements military organizations
under the direction of said respondents"; that, as per "official reports, the Department of General
Services ... is now the civilian agency in custody of the premises of the Legislative Building"; that
respondents "have unlawfully excluded and prevented, and continue to so exclude and prevent" the
petitioners "from the performance of their sworn duties, invoking the alleged approval of the 1972
(1973) Constitution of the Philippines by action of the so-called Citizens' Assemblies on January 10,
1973 to January 15, 1973, as stated in and by virtue of Proclamation No. 1102 signed and issued by
the President of the Philippines"; that "the alleged creation of the Citizens' Assemblies as
instrumentalities for the ratification of the Constitution of the Republic of the Philippines" is inherently
illegal and palpably unconstitutional; that respondents Senate President and Senate President Pro
Tempore "have unlawfully refrained and continue to refrain from and/or unlawfully neglected and
continue to neglect the performance of their duties and functions as such officers under the law and
the Rules of the Senate" quoted in the petition; that because of events supervening the institution of
the plebiscite cases, to which reference has been made in the preceding pages, the Supreme Court
dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions
therein had become moot and academic; that the alleged ratification of the 1972 (1973) Constitution
"is illegal, unconstitutional and void and ... can not have superseded and revoked the 1935
Constitution," for the reasons specified in the petition as amended; that, by acting as they did, the
respondents and their "agents, representatives and subordinates ...have excluded the petitioners
from an office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat and Jose Roy
have unlawfully refrained from convening the Senate for its 8th session, assuming general
jurisdiction over the Session Hall and the premises of the Senate and ... continue such inaction up to
this time and ... a writ of mandamus is warranted in order to compel them to comply with the duties
and functions specifically enjoined by law"; and that "against the above mentioned unlawful acts of
the respondents, the petitioners have no appeal nor other speedy and adequate remedy in the
ordinary course of law except by invoking the equitable remedies of mandamus and prohibition with
the provisional remedy of preliminary mandatory injunction."

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

Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein,
alleging that "(t)he subject matter" of said case "is a highly political question which, under the
circumstances, this ...Court would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the plebiscite cases, in effect
upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an
academic exercise in futility."

On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on
the petition therein not later than Saturday, February 10, 1973, and setting the case for hearing on
February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to
consider the comments of the respondents in cases G.R. Nos. L-36142, L-36164, and L-36165, as
motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time
as L-36236. On that date, the parties in G.R. No. L-36283 10 agreed that the same be, likewise,
heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164, L-
36165 and L-36236. The hearing, which began on February 12, 1973, shortly after 9:30 a.m., was
continued not only that afternoon, but, also, on February 13, 14, 15 and 16, morning and afternoon,
after which the parties were granted up to February 24, 1973, noon, within which to submit their
notes of oral arguments and additional arguments, as well as the documents required of them or
whose presentation was reserved by them. The same resolution granted the parties until March 1,
1973, to reply to the notes filed by their respective opponents. Counsel for the petitioners in G.R.
Nos. L-36164 and L-36165 filed their aforementioned notes on February 24, 1973, on which date the
Solicitor General sought an extension of time up to March 3, 1973, within which to file his notes,
which was granted, with the understanding that said notes shall include his reply to the notes already
filed by the petitioners in G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise, moved
and were granted an extension of time, to expire on March 10, 1973, within which to file, as they did,
their notes in reply to those submitted by the Solicitor General on March 3, 1973. On March 21,
1973, petitioners in L-36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office of
the Solicitor General submitted in all these cases a "Rejoinder Petitioners' Replies."

After deliberating on these cases, the members of the Court agreed that each would write his own
opinion and serve a copy thereof on his colleagues, and this they did. Subsequently, the Court
discussed said opinions and votes were cast thereon. Such individual opinions are appended hereto.

Accordingly, the writer will first express his person opinion on the issues before the Court. After the
exposition his aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a
resume of summary of the votes cast by them in these cases.
Writer's Personal Opinion

I.

Alleged academic futility of further proceedings in G.R. L-36165.

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

Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances,
"it seems remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and
much less the ten (10) votes required by the 1972 (1973) Constitution, can be obtained for the relief
sought in the Amended Petition" in G.R. No.
L-36165.

I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court,
during the hearing of these cases, that he was and is willing to be convinced that his aforementioned
opinion in the plebiscite cases should be reconsidered and changed. In effect, he thus declared that
he had an open mind in connection with the cases at bar, and that in deciding the same he would
not necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their
view should be sustained.

Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935
Constitution, eight (8) votes are necessary to declare invalid the contested Proclamation No. 1102. I
do not believe that this assumption is borne out by any provision of said Constitution. Section 10 of
Article VIII thereof reads:

All cases involving the constitutionality of a treaty or law shall be heard and decided
by the Supreme Court in banc, and no treaty or law may be declared unconstitutional
without the concurrence of two thirds of all the members of the Court.

Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court is
required only to declare "treaty or law" unconstitutional. Construing said provision, in a resolution
dated September 16, 1949, then Chief Justice Moran, voicing the unanimous view of the Members
of this Court, postulated:

... There is nothing either in the Constitution or in the Judiciary Act requiring the vote
of eight Justices to nullify a rule or regulation or an executive order issued by the
 President. It is very significant that in the previous drafts of section 10, Article VIII of
the Constitution, "executive order" and "regulation" were included among those that
required for their nullification the vote of two-thirds of all the members of the Court.
But "executive order" and "regulation" were later deleted from the final draft (Aruego,
The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere
majority of six members of this Court is enough to nullify them. 11

The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes)
requirement, indeed, was made to apply only to treaty and law, because, in these cases, the
participation of the two other departments of the government — the Executive and the Legislative —
is present, which circumstance is absent in the case of rules, regulations and executive orders.
Indeed, a law (statute) passed by Congress is subject to the approval or veto of the President,
whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of
each House of Congress. 12 A treaty is entered into by the President with the concurrence of the
Senate, 13 which is not required in the case of rules, regulations or executive orders which are
exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in
the Supreme Court than that required to invalidate a law or treaty.

Although the foregoing refers to rules, regulations and executive orders issued by the President, the
dictum applies with equal force to executive proclamation, like said Proclamation No. 1102,
inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative
Code, which provides:

Administrative acts and commands of the (Governor-General) President of the

Philippines touching the organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions, parts or ports of the
(Philippine Islands) Philippines and all acts and commands governing the general
performance of duties by public employees or disposing of issues of general concern
shall be made effective in executive orders.

Executive orders fixing the dates when specific laws, resolutions, or orders are to
have or cease to (have) effect and any information concerning matters of public
moment determined by law, resolution, or executive orders, may be promulgated in
an executive proclamation, with all the force of an executive order. 14

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

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

II
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and,
hence, non-justiciable question?

The Solicitor General maintains in his comment the affirmative view and this is his main defense. In
support thereof, he alleges that "petitioners would have this Court declare as invalid the New
Constitution of the Republic" from which — he claims — "this Court now derives its authority"; that
"nearly 15 million of our body politic from the age of 15 years have mandated this Constitution to be
the New Constitution and the prospect of unsettling acts done in reliance on it caution against
interposition of the power of judicial review"; that "in the case of the New Constitution, the
government has been recognized in accordance with the New Constitution"; that "the country's
foreign relations are now being conducted in accordance with the new charter"; that "foreign
governments have taken note of it"; that the "plebiscite cases" are "not precedents for holding
questions regarding proposal and ratification justiciable"; and that "to abstain from judgment on the
ultimate issue of constitutionality is not to abdicate duty."

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

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

Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents therein
that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15,
1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a
proper subject of judicial inquiry because, they claimed, it partook of a political nature, and
We unanimously declared that the issue was a justiciable one. With identical unanimity, We
overruled the respondents' contention in the 1971 habeas corpus cases, 19 questioning Our authority
to determine the constitutional sufficiency of the factual bases of the Presidential proclamation
suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view
taken by this Court in Barcelona v. Baker 20 and Montenegro v. Castañeda, 21 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 v. Commission on Elections, 22 the
political-question theory adopted in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to
reconsider the action thus taken by the Court and to revert to and follow the views expressed
in Barcelon v. Baker and Mabanag v. Lopez Vito. 24

The reasons adduced in support thereof are, however, substantially the same as those given in
support of the political-question theory advanced in said habeas corpus and plebiscite cases, which
were carefully considered by this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence, Our decision in the aforementioned habeas corpus cases partakes of
the nature and effect of a stare decisis, which gained added weight by its virtual reiteration in the
plebiscite cases.

The reason why the issue under consideration and other issues of similar character are justiciable,
not political, is plain and simple. One of the principal bases of the non-justiciability of so-called
political questions is the principle of separation of powers — characteristic of the Presidential system
of government — the functions of which are classified or divided, by reason of their nature, into three
(3) categories, namely: 1) those involving the making of laws, which are allocated to the legislative
department; 2) those concerned mainly with the enforcement of such laws and of judicial decisions
applying and/or interpreting the same, which belong to the executive department; and 3) those
dealing with the settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable, which are apportioned to courts of justice.
Within its own sphere — but only within such sphere — each department is supreme and
independent of the others, and each is devoid of authority, not only to encroach upon the powers or
field of action assigned to any of the other departments, but, also, to inquire into or pass upon the
advisability or wisdom of the acts performed, measures taken or decisions made by the other
departments — provided that such acts, measures or decisions are within the area allocated thereto
by the Constitution. 25

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

"At the threshold of the case we are met with the assertion that the questions
involved are political, and not judicial. If this is correct, the court has no jurisdiction as
the certificate of the state canvassing board would then be final, regardless of the
actual vote upon the amendment. The question thus raised is a fundamental one; but
it has been so often decided contrary to the view contended for by the Attorney
General that it would seem to be finally settled.

xxx xxx xxx

"... What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their primary
political capacity, or that it has been specifically delegated to some other department
or particular officer of the government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32
Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A.
90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220.
Thus the Legislature may in its discretion determine whether it will pass law or submit
a proposed constitutional amendment to the people. The courts have no judicial
control over such matters, not merely because they involve political questions, but
because they are matters which the people have by the Constitution delegated to the
Legislature. The Governor may exercise the powers delegated him, free from judicial
control, so long as he observes the laws act within the limits of the power conferred.
His discretionary acts cannot be controllable, not primarily because they are of a
politics nature, but because the Constitution and laws have placed the particular
matter under his control. But every officer under constitutional government must act
accordingly to law and subject its restrictions, and every departure therefrom or
disregard thereof must subject him to that restraining and controlling power of the
people, acting through the agency of the judiciary; for it must be remembered that the
people act through courts, as well as through the executive or the Legislature. One
department is just as representative as the other, and the judiciary is the department
which is charged with the special duty of determining the limitations which the law
places upon all official action. The recognition of this principle, unknown except in
Great Britain and America, is necessary, to "the end that the government may be one
of laws and not of men" — words which Webster said were the greatest contained in
any written constitutional document." (Emphasis supplied.)

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

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

The Solicitor General has invoked Luther v. Borden 31 in support of his stand that the issue under
consideration is non-justiciable in nature. Neither the factual background of that case nor the action
taken therein by the Federal Supreme Court has any similarity with or bearing on the cases under
consideration.

Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States
against Borden and others for having forcibly entered into Luther's house, in Rhode Island,
sometime in 1842. The defendants who were in the military service of said former colony of England,
alleged in their defense that they had acted in obedience to the commands of a superior officer,
because Luther and others were engaged in a conspiracy to overthrow the government by force and
the state had been placed by competent authority under Martial Law. Such authority was the charter
government of Rhode Island at the time of the Declaration of Independence, for — unlike other
states which adopted a new Constitution upon secession from England — Rhode Island retained its
form of government under a British Charter, making only such alterations, by acts of the Legislature,
as were necessary to adapt it to its subsequent condition as an independent state. It was under this
form of government when Rhode Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the Constitution of the United States, became a
member of the Union. In 1843, it adopted a new Constitution.

Prior thereto, however, many citizens had become dissatisfied with the charter government.
Memorials addressed by them to the Legislature having failed to bring about the desired effect,
meetings were held and associations formed — by those who belonged to this segment of the
population — which eventually resulted in a convention called for the drafting of a new Constitution
to be submitted to the people for their adoption or rejection. The convention was not authorized by
any law of the existing government. The delegates to such convention framed a new Constitution
which was submitted to the people. Upon the return of the votes cast by them, the convention
declared that said Constitution had been adopted and ratified by a majority of the people and
became the paramount law and Constitution of Rhode Island.

The charter government, which was supported by a large number of citizens of the state, contested,
however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been
elected governor under the new Constitution of the rebels, prepared to assert authority by force of
arms, and many citizens assembled to support him. Thereupon, the charter government passed an
Act declaring the state under Martial Law and adopted measures to repel the threatened attack and
subdue the rebels. This was the state of affairs when the defendants, who were in the military
service of the charter government and were to arrest Luther, for engaging in the support of the rebel
government — which was never able to exercise any authority in the state — broke into his house.

Meanwhile, the charter government had taken measures to call its own convention to revise the
existing form of government. Eventually, a new constitution was drafted by a convention held under
the authority of the charter government, and thereafter was adopted and ratified by the people.
"(T)he times and places at which the votes were to be given, the persons who were to receive and
return them, and the qualifications of the voters having all been previously authorized and provided
for by law passed by the charter government," the latter formally surrendered all of its powers to the
new government, established under its authority, in May 1843, which had been in
operation uninterruptedly since then.

About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful
attempt to take possession of the state arsenal in Providence, but he was repulsed, and, after an
"assemblage of some hundreds of armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the old government, no further effort was
made to establish" his government. "... until the Constitution of 1843" — adopted under the auspices
of the charter government — "went into operation, the charter government continued to assert its
authority and exercise its powers and to enforce obedience throughout the state ... ."

Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by
the majority of the people, which the Circuit Court rejected, apart from rendering judgment for the
defendants, the plaintiff took the case for review to the Federal Supreme Court which affirmed the
action of the Circuit Court, stating:

It is worthy of remark, however, when we are referring to the authority of State

decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843
went into operation. The judges who decided that case held their authority under that
constitution and it is admitted on all hands that it was adopted by the people of the
State, and is the lawful and established government. It is the decision, therefore, of a
State court, whose judicial authority to decide upon the constitution and laws of
Rhode Island is not questioned by either party to this controversy, although the
government under which it acted was framed and adopted under the sanction and
laws of the charter government.

The point, then, raised here has been already decided by the courts of Rhode Island.
The question relates, altogether, to the constitution and laws of that State, and the
well settled rule in this court is, that the courts of the United States adopt and follow
the decisions of the State courts in questions which concern merely the constitution
and laws of the State.

Upon what ground could the Circuit Court of the United States which tried this case
have departed from this rule, and disregarded and overruled the decisions of the
courts of Rhode Island? Undoubtedly the courts of the United States have certain
powers under the Constitution and laws of the United States which do not belong to
the State courts. But the power of determining that a State government has been
lawfully established, which the courts of the State disown and repudiate, is not one of
them. Upon such a question the courts of the United States are bound to follow the
decisions of the State tribunals, and must therefore regard the charter government as
the lawful and established government during the time of this contest. 32
It is thus apparent that the context within which the case of Luther v. Borden was decided is basically
and fundamentally different from that of the cases at bar. To begin with, the case did not involve a
federal question, but one purely municipal in nature. Hence, the Federal Supreme Court was "bound
to follow the decisions of the State tribunals" of Rhode Island upholding the constitution adopted
under the authority of the charter government. Whatever else was said in that case constitutes,
therefore, an obiter dictum. Besides, no decision analogous to that rendered by the State Court of
Rhode Island exists in the cases at bar. Secondly, the states of the Union have a measure of internal
sovereignty upon which the Federal Government may not encroach, whereas ours is a unitary form
of government, under which our local governments derive their authority from the national
government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island
contained no provision on the manner, procedure or conditions for its amendment.

Then, too, the case of Luther v. Borden hinged more on the question of recognition of government,
than on recognition of constitution, and there is a fundamental difference between these two (2)
types of recognition, the first being generally conceded to be a political question, whereas the nature
of the latter depends upon a number of factors, one of them being whether the new Constitution has
been adopted in the manner prescribed in the Constitution in force at the time of the purported
ratification of the former, which is essentially a justiciable question. There was, in Luther v. Borden, a
conflict between two (2) rival governments, antagonistic to each other, which is absent in the present
cases. Here, the Government established under the 1935 Constitution is the very same government
whose Executive Department has urged the adoption of the new or revised Constitution proposed by
the 1971 Constitutional Convention and now alleges that it has been ratified by the people.

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

Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that
the courts have no power to determine questions of a political character. It is
interesting historically, but it has not the slightest application to the case at bar. When
carefully analyzed, it appears that it merely determines that the federal courts will
accept as final and controlling a decision of the highest court of a state upon a
question of the construction of the Constitution of the state. ... . 33

Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute apportioning
the seats in the General Assembly among the counties of the State, upon the theory that the
legislation violated the equal protection clause. A district court dismissed the case upon the ground,
among others, that the issue was a political one, but, after a painstaking review of the jurisprudence
on the matter, the Federal Supreme Court reversed the appealed decision and held that said
issue was justiciable and non-political, inasmuch as:"... (d)eciding whether a matter has in any
measure been committed by the Constitution to another branch of government, or whether the action
of that branch exceeds whatever authority has been committed, is itself a delicate exercise in
constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the
Constitution ... ."

Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief Justice Warren,
reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court,
dismissing Powell's action for a declaratory judgment declaring thereunder that he — whose
qualifications were uncontested — had been unlawfully excluded from the 90th Congress of the U.S.
Said dismissal was predicated upon the ground, inter alia, that the issue was political, but the
Federal Supreme Court held that it was clearly a justiciable one.

The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the
matter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A
thereof.

After an, exhaustive analysis of the cases on this subject, the Court concluded:

The authorities are thus practically uniform in holding that whether a constitutional
amendment has been properly adopted according to the requirements of an existing
Constitution is a judicial question. There can be little doubt that the consensus of
judicial opinion is to the effect that it is the absolute dutyof the judiciary to determine
whether the Constitution has been amended in the manner required by the
Constitution, unless a special tribunal has been created to determine the question;
and even then many of the courts hold that the tribunal cannot be permitted to
illegally amend the organic law. ... . 36

In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the
method or procedure for its amendment, it is clear to my mind that the question whether or not the
revised Constitution drafted by the 1971 Constitutional Convention has been ratified in accordance
with said Art. XV is a justiciable one and non-political in nature, and that it is not only subject to
judicial inquiry, but, also, that it is the Court's bounden duty to decide such question.

The Supreme Court of the United States has meaningfully postulated that "the courts cannot reject
as 'no law suit' " — because it allegedly involves a political question — "a bona fide controversy as to
whether some action denominated "political" exceeds constitutional authority." 37

III

Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935
Constitution?

Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President "is without
authority to create the Citizens' Assemblies" through which, respondents maintain, the proposed new
Constitution has been ratified; that said Assemblies "are without power to approve the proposed
Constitution"; 3) that the President "is without power to proclaim the ratification by the Filipino people
of the proposed Constitution"; and 4) that "the election held (in the Citizens' Assemblies) to ratify the
proposed Constitution was not a free election, hence null and void."

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

Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a
government-controlled press, there can never be a fair and proper submission of the proposed
Constitution to the people"; and 2) Proclamation No. 1102 is null and void "(i)nasmuch as the
ratification process" prescribed "in the 1935 Constitution was not followed."

Besides adopting substantially some of the grounds relied upon by the petitioners in the above-
mentioned cases, the petitioners in L-36283 argue that "(t)he creation of the Citizens' Assemblies as
the vehicle for the ratification of the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite to either February 19 or
March 5, 1973." 38

The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been
set forth earlier in this opinion. Hence, it is unnecessary to reproduce them here. So it is, with
respect to the positions taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose
Roy — although more will be said later about them — and by the Solicitor General, on behalf of the
other respondents in that case and the respondents in the other cases.

1. What is the procedure prescribed by the 1935 Constitution for its amendment?

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

1. That the amendments to the Constitution be proposed either by Congress or by a convention

called for that purpose, "by a vote of three-fourths of all the Members of the Senate and the House of
Representatives voting separately," but "in joint session assembled";

2. That such amendments be "submitted to the people for their ratification" at an "election"; and

3. That such amendments be "approved by a majority of the votes cast" in said election.

Compliance with the first requirement is virtually conceded, although the petitioners in L-36164
question the authority of the 1971 Constitutional Convention to incorporate certain provisions into the
draft of the new or revised Constitution. The main issue in these five (5) cases hinges, therefore, on
whether or not the last two (2) requirements have been complied with.

2. Has the contested draft of the new or revised Constitution been submitted to the people for their
ratification conformably to Art. XV of the Constitution?

In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be
taken into account, namely, section I of Art. V and Art. X of said Constitution. The former reads:

Section 1. Suffrage may be exercised by male citizens of the Philippines not

otherwise disqualified by law, who are twenty-one years of age or over and are able
to read and write, and who shall have resided in the Philippines for one year and in
the municipality wherein they propose to vote for at least six months preceding the
election. The National Assembly shall extend the right of suffrage to women, if in a
plebiscite which shall be held for that purpose within two years after the adoption of
this Constitution, not less than three hundred thousand women possessing the
necessary qualifications shall vote affirmatively on the question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:

Section 1. There shall be an independent Commission on Elections composed of a

Chairman and two other Members to be appointed by the President with the consent
of the Commission on Appointments, who shall hold office for a term of nine years
and may not be reappointed. ...

xxx xxx xxx

Sec. 2. The Commission on Elections shall have exclusive charge of the

enforcement and administration of all laws relative to the conduct of elections and
shall exercise all other functions which may be conferred upon it by law. It shall
decide, save those involving the right to vote, all administrative questions, affecting
elections, including the determination of the number and location of polling places,
and the appointment of election inspectors and of other election officials. All law
enforcement agencies and instrumentalities of the Government, when so required by
the Commission, shall act as its deputiesfor the purpose of insuring fee, orderly, and
honest elections. The decisions, orders, and rulings of the Commission shall be
subject to review by the Supreme Court.

xxx xxx xxx 39

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

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

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

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

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

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

This view is further bolstered by the fact that the 1971 Constitutional Convention sought the
submission to a plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935
Constitution, by reducing the voting age from twenty-one (21) years to eighteen (18) years, which,
however, did not materialize on account of the decision of this Court in Tolentino v. Commission on
Elections, 45 granting the writs, of prohibition and injunction therein applied for, upon the ground that,
under the Constitution, all of the amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct elections, and that the proposed
amendment sought to be submitted to a plebiscite was not even a complete amendment, but a
"partial amendment" of said section 1, which could be amended further, after its ratification, had the
same taken place, so that the aforementioned partial amendment was, for legal purposes, no more
than a provisional or temporary amendment. Said partial amendment was predicated upon the
generally accepted contemporary construction that, under the 1935 Constitution, persons below
twenty-one (21) years of age could not exercise the right of suffrage, without a previous amendment
of the Constitution.

Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in
barrio assembly plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict
between the last paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority
vote of all the barrio assembly members" (which include all barrio residents 18 years of age or over,
duly registered in the list of barrio assembly members) is necessary for the approval, in an assembly
plebiscite, of "any budgetary, supplemental appropriations or special tax ordinances," whereas,
according to the paragraph preceding the penultimate one of said section, 47 "(a)ll duly registered
barrio assembly members qualified to vote" — who, pursuant to section 10 of the same Act, must be
citizens "of the Philippines, twenty-one years of age or over, able to read and write," and residents
the barrio "during the six months immediately preceding election, duly registered in the list of voters"
and " otherwise disqualified ..." — just like the provisions of present and past election codes of the
Philippines and Art. V of the 1935 Constitution — "may vote in the plebiscite."

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

It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V
thereof to apply only to elections of public officers, not to plebiscites for the ratification of
amendments to the Fundamental Law or revision thereof, or of an entirely new Constitution, and
permit the legislature to require lesser qualifications for such ratification, notwithstanding the fact that
the object thereof much more important — if not fundamental, such as the basic changes introduced
in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which a
intended to be in force permanently, or, at least, for many decades, and to affect the way of life of
the nation — and, accordingly, demands greater experience and maturity on the part of the
electorate than that required for the election of public officers, 49 whose average term ranges from 2
to 6 years.

It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not
they possessed the other qualifications laid down in both the Constitution and the present Election
Code, 50 and of whether or not they are disqualified under the provisions of said Constitution and
Code, 51 or those of Republic Act No. 3590, 52have participated and voted in the Citizens' Assemblies
that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional
Convention.

In fact, according to the latest official data, the total number of registered voters 21 years of age or
over in the entire Philippines, available in January 1973, was less than 12 million. Yet, Proclamation
No. 1102 states that 14,976,56 "members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against ... 743,869 who voted for its rejection," whereas,
on the question whether or not the people still wanted a plebiscite to be called to ratify the new
Constitution, "... 14,298,814 answered that there was no need for a plebiscite and that the vote of
the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite." In other words,
it is conceded that the number of people who allegedly voted at the Citizens' Assemblies for
exceeded the number of registered voters under the Election Code in force in January 1973.

It is thus clear that the proceedings held in such Citizens' Assemblies — and We have more to say
on this point in subsequent pages — were fundamentally irregular, in that persons lacking the
qualifications prescribed in section 1 of Art. V of the Constitution were allowed to vote in said
Assemblies. And, since there is no means by which the invalid votes of those less than 21 years of
age can be separated or segregated from those of the qualified voters, the proceedings in the
Citizens' Assemblies must be considered null and void. 53

It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case where it
is impossible to ascertain with reasonable certainty the true vote," as where "it is impossible to
separate the legal votes from the illegal or spurious ... ." 54

In Usman v. Commission on Elections, et al., 55 We held:

Several circumstances, defying exact description and dependent mainly on the

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

Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to
the Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled
meaning.

The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65
N.W. 956, 64 Minn. 16, to have been used as an equivalent of "ballots cast." 56

The word "cast" is defined as "to deposit formally or officially." 57

It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ...
The word "cast" means "deposit (a ballot) formally or officially ... .

... In simple words, we would define a "vote cast" as the exercise on a ballot of the
choice of the voter on the measure proposed. 58

In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots — not
orally or by raising — by the persons taking part in plebiscites. This is but natural and logical, for,
since the early years of the American regime, we had adopted the Australian Ballot System, with its
major characteristics, namely, uniform official ballots prepared and furnished by the Government and
secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, when
necessary, into the accuracy of the election returns. And the 1935 Constitution has been consistently
interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from 1935
to 1967. Hence, the viva voce voting in the Citizens' Assemblies was and is null and void ab initio.

b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof,
particularly its sections 1 and 2. Indeed, section 1 provides that "(t)here shall be
an independent Commission on Elections ... ." The point to be stressed here is the term
"independent." Indeed, why was the term used?

In the absence of said constitutional provision as to the independence of the Commission, would it
have been depends upon either Congress or the Judiciary? The answer must be the negative,
because the functions of the Commission — "enforcement and administration" of election laws —
are neither legislative nor judicial in nature, and, hence, beyond the field allocated to either Congress
or courts of justice. Said functions are by their nature essentially executive, for which reason, the
Commission would be under the "control" of the President, pursuant to section 10, paragraph (1) of
Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it (the Commission) is an
"independent" body. In other words, in amending the original 1935 Constitution, by inserting therein
said Art. X, on the Commission on Elections, the purpose was to make said
Commission independent principally of the Chief Executive.

And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a
constitutional organ, election laws in the Philippines were enforced by the then Department of the
Interior, through its Executive Bureau, one of the offices under the supervision and control of said
Department. The same — like other departments of the Executive Branch of the Government —
was, in turn, under the control of the Chief Executive, before the adoption of the 1935 Constitution,
and had been — until the abolition of said Department, sometime ago — under the control of the
President of the Philippines, since the effectivity of said Fundamental Law. Under the provisions
thereof, the Executive could so use his power of control over the Department of the Interior and its
Executive Bureau as to place the minority party at such a great, if not decisive, disadvantage, as to
deprive it, in effect, of the opportunity to defeat the political party in power, and, hence, to enable the
same to perpetuate itself therein. To forestall this possibility, the original 1935 Constitution was
amended by the establishment of the Commission on Elections as a constitutional body independent
primarily of the President of the Philippines.

The independence of the Commission was sought to be strengthened by the long term of office of its
members — nine (9) years, except those first appointed 59 — the longest under the Constitution,
second only to that of the Auditor General 60; by providing that they may not be removed from office
except by impeachment, placing them, in this respect, on the same plane as the President, the Vice-
President, the Justices of the Supreme Court and the Auditor General; that they may not be
reappointed; that their salaries, "shall be neither increased nor diminished during their term of office";
that the decisions the Commission "shall be subject to review by the Supreme Court" only 61; that
"(n)o pardon, parole, or suspension sentence for the violation of any election law may be granted
without the favorable recommendation of the Commission"62; and, that its chairman and members
"shall not, during the continuance in office, engage in the practice of any profession or intervene,
directly or indirectly, in the management or control of any private enterprise which in anyway may
affected by the functions of their office; nor shall they, directly or indirectly, be financially interested in
any contract with the Government or any subdivision or instrumentality thereof." 63 Thus, the framers
of the amendment to the original Constitution of 1935 endeavored to do everything possible protect
and insure the independence of each member of the Commission.

With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he
Commission on Elections shall have exclusive charge of the enforcement and administration all laws
relative to the conduct of elections," apart from such other "functions which may be conferred upon it
by law." It further provides that the Commission "shall decide, save those involving the right to
vote, all administrative question affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and of other election officials."
And, to forests possible conflicts or frictions between the Commission, on one hand, and the other
offices or agencies of the executive department, on the other, said section 2 postulates that "(a)ll law
enforcement agencies and instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections."
Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and ruling of the
Commission" shall not be subject to review, except by the Supreme Court.

In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388,
otherwise known as the Election Code of 1971, implements the constitutional powers of the
Commission on Elections and grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act contains, inter alia, detailed
provisions regulating contributions and other (corrupt) practices; the establishment of election
precincts; the designation and arrangement of polling places, including voting booths, to protect the
secrecy of the ballot; formation of lists of voters, the identification and registration of voters, the
proceedings therefor, as well as for the inclusion in, or exclusion or cancellation from said list and
the publication thereof; the establishment of municipal, provincial and files of registered voters; the
composition and appointment of board of election inspectors; the particulars of the official ballots to
be used and the precautions to be taken to insure authenticity thereof; the procedure for the casting
of votes; the counting of votes by boards of inspectors; the rules for the appreciation of ballots and
the preparation and disposition of election returns; the constitution and operation of municipal,
provincials and national boards of canvassers; the presentation of the political parties and/or their
candidates in each election precinct; the proclamation of the results, including, in the case of election
of public officers, election contests; and the jurisdiction of courts of justice in cases of violation of the
provisions of said Election Code and the penalties for such violations.

Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free,
orderly, and honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the so-called Barangays or
Citizens' Assemblies. And no reasons have been given, or even sought to be given therefor. In
many, if not most, instances, the election were held a viva voce, thus depriving the electorate of the
right to vote secretly — one of the most, fundamental and critical features of our election laws from
time immemorial — particularly at a time when the same was of utmost importance, owing to
the existence of Martial Law.

In Glen v. Gnau, 65 involving the casting of many votes, openly, without complying with the
requirements of the law pertinent thereto, it was held that the "election officers" involved "cannot be
too strongly condemned" therefor and that if they "could legally dispense with such requirement ...
they could with equal propriety dispense with all of them, including the one that the vote shall be by
secret ballot, or even by ballot
at all ... ."

Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the
1971 Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity
of which — which was contested in the plebiscite cases, as well as in the 1972 habeas
corpus cases 66 — We need not, in the case of bar, express any opinion) was issued, calling a
plebiscite, to be held on January 15, 1973, at which the proposed Constitution would be submitted to
the people for ratification or rejection; directing the publication of said proposed Constitution; and
declaring, inter alia, that "(t)he provision of the Election Code of 1971, insofar as they are not
inconsistent" with said decree — excepting those "regarding right and obligations of political parties
and candidates" — "shall apply to the conduct of the plebiscite." Indeed, section 2 of said Election
Code of 1971 provides that "(a)ll elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this Code." General Order No. 20, dated
January 7, 1973, postponing until further notice, "the plebiscite scheduled to be held on January 15,
1973," said nothing about the procedure to be followed in plebiscite to take place at such notice, and
no other order or decree has been brought to Our attention, expressly or impliedly repealing the
provisions of Presidential Decree 73, insofar as said procedure is concerned.

Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of
Presidential Decree No. 73 insofar as they allow free public discussion of proposed Constitution ...
temporarily suspending effects of Proclamation No. 1081 for the purposes of free open dabate on
the proposed Constitution ... ." This specific mention of the portions of the decrees or orders or
instructions suspended by General Order No. 20 necessarily implies that all other portions of said
decrees, orders or instructions — and, hence, the provisions of Presidential Decree No. 73 outlining
the procedure to be followed in the plebiscite for ratification or rejection of the proposed Constitution
— remained in force, assuming that said Decree is valid.

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

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

The point is that, such of the Barrio Assemblies as were held took place without the intervention of
the Commission on Elections, and without complying with the provisions of the Election Code of
1971 or even of those of Presidential Decree No. 73. What is more, they were held under the
supervision of the very officers and agencies of the Executive Department sought to be
excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the
1935 Constitution would be favored thereby, owing to the practical indefinite extension of their
respective terms of office in consequence of section 9 of the Transitory Provisions, found in Art. XVII
of the proposed Constitution, without any elections therefor. And the procedure therein mostly
followed is such that there is no reasonable means of checking the accuracy of the returns files by
the officers who conducted said plebiscites. This is another patent violation of Art. of the Constitution
which can hardly be sanctioned. And, since the provisions of this article form part of
the fundamental scheme set forth in the 1935 Constitution, as amended, to insure the "free, orderly,
and honest" expression of the people's will, the aforementioned violation thereof renders null and
void the contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same
are claimed to have ratified the revised Constitution proposed by the 1971 Constitutional
Convention. "... (a)ll the authorities agree that the legal definition of an election, as well as that which
is usually and ordinarily understood by the term, is a choosing or as election by those having a right
to participate (in the selection) of those who shall fill the offices, or of the adoption or rejection of any
public measure affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac.
732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11
L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary. 68

IV

Has the proposed Constitution aforementioned

been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?

Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is
precisely being contested by petitioners herein. Respondents claim that said proclamation is
"conclusive" upon this Court, or is, at least, entitled to full faith and credence, as an enrolled bill; that
the proposed Constitution has been, in fact, ratified, approved or adopted by the "overwhelming"
majority of the people; that Art. XV of the 1935 Constitution has thus been "substancially" complied
with; and that the Court refrain from passing upon the validity of Proclamation No. 1102, not only
because such question is political in nature, but, also, because should the Court invalidate the
proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides
and from its power are derived.

The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on
which it is predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of
Minnessota has aptly put it —

... every officer under a constitutional government must act according to law and
subject to its restrictions, and every departure therefrom or disregard thereof must
subject him to the restraining and controlling of the people, acting through the agency
of the judiciary; for it must be remembered that the people act through courts, as well
as through the executive or the Legislature. One department is just as representative
as the other, and the judiciary is the department which is charged with the special
duty of determining the limitations which the law places upon all official action. ... .

Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his
authority when he certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen
hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies)
throughout the Philippines and has thereby come into effect."

In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he
certified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to
place beyond the Executive the power to supervise or even exercise any authority whatsoever over
"all laws relative to the conduct of elections," and, hence, whether the elections are for the choice or
selection of public officers or for the ratification or rejection of any proposed amendment, or revision
of the Fundamental Law, since the proceedings for the latter are, also, referred to in said Art. XV as
"elections".

The Solicitor General stated, in his argument before this Court, that he had been informed that there
was in each municipality a municipal association of presidents of the citizens' assemblies for each
barrio of the municipality; that the president of each such municipal association formed part of a
provincial or city association of presidents of such municipal associations; that the president of each
one of these provincial or city associations in turn formed part of a National Association or
Federation of Presidents of such Provincial or City Associations; and that one Francisco Cruz from
Pasig, Rizal, as President of said National Association or Federation, reported to the President of the
Philippines, in the morning of January 17, 1973, the total result of the voting in the citizens'
assemblies all over the country from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results of the citizens' assemblies in
their respective municipalities to the corresponding Provincial Association, which, in turn, transmitted
the results of the voting in the to the Department of Local Governments and Community
Development, which tabulated the results of the voting in the citizens' assemblies throughout the
Philippines and then turned them over to Mr. Franciso Cruz, as President or acting President of the
National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported
said results (tabulated by the Department of Governments and Community Development) to the
Chief Executive, who, accordingly, issued Proclamation No. 1102.

The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972,
so that he could possibly have been a member on January 17, 1973, of a municipal association
of presidents of barrio or ward citizens' assemblies, much less of a Provincial, City or National
Association or Federation of Presidents of any such provincial or city associations.

Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of
this Court of same date, the Solicitor General was asked to submit, together with his notes on his
oral argument, a true copy of aforementioned report of Mr. Cruz to the President and of
"(p)roclamation, decree, instruction, order, regulation or circular, if any, creating or directing or
authorizing creation, establishment or organization" of said municipal, provincial and national
associations, but neither a copy of alleged report to the President, nor a copy of any "(p)roclamation,
decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence of
said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of
any factual and legalfoundation. Hence, the conclusion set forth in the dispositive portion of said
Proclamation No. 1102, to the effect that the proposed new or revised Constitution had been ratified
by majority of the votes cast by the people, can not possibly have any legal effect or value.

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

The case of In re McConaughy 72 is squarely in point. "As the Constitution stood from the
organization of the state" — of Minnessota — "all taxes were required to be raised under the system
known as the 'general property tax.' Dissatisfaction with the results of this method and the
development of more scientific and satisfactory methods of raising revenue induced the Legislature
to submit to the people an amendment to the Constitution which provided merely that taxes shall be
uniform upon the same class of subjects. This proposed amendment was submitted at the general
election held in November, 1906, and in due time it was certified by the state canvassing board and
proclaimed by the Governor as having been legally adopted. Acting upon the assumption that the
amendment had become a part of the Constitution, the Legislature enacted statutes providing for a
State Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory,
was held constitutional" by said Court. "The district court found that the amendment had no in fact
been adopted, and on this appeal" the Supreme Court was "required to determine the correctness of
that conclusion."

Referring to the effect of the certification of the State Board of Canvassers created by the Legislature
and of theproclamation made by the Governor based thereon, the Court held: "It will be noted that
this board does no more than tabulate the reports received from the various county board and add
up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It
is settled law that the decisions of election officers, and canvassing boards are not conclusive and
that the final decision must rest with the courts, unless the law declares that the decisions of the
board shall be final" — and there is no such law in the cases at bar. "... The correctness of the
conclusion of the state board rests upon the correctness of the returns made by the county boards
and it is inconceivable that it was intended that this statement of result should be final and
conclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the way
of conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally
notify the people of the state of the result of the voting as found by the canvassing board. James on
Const. Conv. (4th Ed.) sec. 523."

In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by the
canvassing board, in order that the true results could be judicially determined. And so did the court
in Rice v. Palmer. 74

Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission
on Elections, "the enforcement and administration of all laws relative to the conduct of
elections," independently of the Executive, and there is not even a certification by the Commission in
support of the alleged results of the citizens' assemblies relied upon in Proclamation No.
1102 — apart from the fact that on January 17, 1973 neither the alleged president of the Federation
of Provincial or City Barangays nor the Department of Local Governments had certified to the
President the alleged result of the citizens' assemblies all over the Philippines — it follows
necessarily that, from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima
facie evidence of the alleged ratification of the proposed Constitution.

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

Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV
of the Constitution has not been complied with, and since the alleged substantial compliance with
the requirements thereof partakes of the nature of a defense set up by the other respondents in
these cases, the burden of proving such defense — which, if true, should be within their peculiar
knowledge — is clearly on such respondents. Accordingly, if despite the extensive notes and
documents submitted by the parties herein, the members of the Court do not know or are not
prepared to say whether or not the majority of the people or of those who took part in the Citizens'
Assemblies have assented to the proposed Constitution, the logical step would be to give due
course to these cases, require the respondents to file their answers, and the plaintiffs their reply,
and, thereafter, to receive the pertinent evidence and then proceed to the determination of the
issues raised thereby. Otherwise, we would be placing upon the petitioners the burden of disproving
a defense set up by the respondents, who have not so far established the truth of such defense.

Even more important, and decisive, than the foregoing is the circumstance that there is ample
reason to believe that many, if not most, of the people did not know that the Citizens' Assemblies
were, at the time they were held, plebiscites for the ratification or rejection of the proposed
Constitution. Hence, in Our decision in the plebiscite cases, We said, inter alia:

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

In view of these events relative to the postponement of the aforementioned

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

And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 —
four (4) days after the last hearing of said cases 76 — the President announced the postponement of
the plebiscite scheduled by Presidential Decree No. 73 to be held on January 15, 1973, after
consultation with the Commission on Elections and the leaders of Congress, owing to doubts on the
sufficiency of the time available to translate the proposed Constitution into some local dialects and to
comply with some pre-electoral requirements, as well as to afford the people a reasonable
opportunity to be posted on the contents and implications of said transcendental document. On
January 7, 1973, General Order No. 20 was issued formally, postponing said plebiscite "until further
notice." How can said postponement be reconciled with the theory that the proceedings in the
Citizens' Assemblies scheduled to be held from January 10 to January 15, 1973, were "plebiscites,"
in effect, accelerated, according to the theory of the Solicitor General, for the ratification of the
proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in
Art. XV of the Constitution, what, then, was the "plebiscite" postponed by General Order No. 20?
Under these circumstances, it was only reasonable for the people who attended such assemblies to
believe that the same were not an "election" or plebiscite for the ratification or adoption of said
proposed Constitution.

And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies,
namely:

[1] Do you like the New Society?

[2] Do you like the reforms under martial law?

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

[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos is running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional question.]

[6] Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?

[7] Do you approve of the new Constitution?

[8] Do you want a plebiscite to be called to ratify the new Constitution?

[9] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?

[10] If the elections would not be held, when do you want the next elections to be
called?

[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the
ratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is the
language of question No. 7 — "Do you approve the new Constitution?" One approves "of" the act of
another which does not need such approval for the effectivity of said act, which the first person,
however, finds to be good, wise satisfactory. The approval of the majority of the votes cast in
plebiscite is, however, essential for an amendment to the Constitution to be valid as part thereof.
Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question No. 8 would
have been unnecessary and improper, regardless of whether question No. 7 were answered
affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative, the
proposed Constitution would have become effective and no other plebiscite could be held thereafter
in connection therewith, even if the majority of the answers to question No. 8 were, also, in the
affirmative. If the majority of the answers to question No. 7 were in the negative, neither may another
plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In
either case, not more than one plebiscite could be held for the ratification or rejection of the
proposed Constitution. In short, the insertion of said two (2) questions — apart from the other
questions adverted to above — indicates strongly that the proceedings therein did not partake of the
nature of a plebiscite or election for the ratification or rejection of the proposed Constitution.

Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or
adopted by the people in the citizens' assemblies all over the Philippines, when it is, to my mind, a
matter of judicial knowledge that there have been no such citizens' assemblies in many parts of
Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter of Governor Efren B.
Pascual of Bataan, dated January 15, 1973, to the Chief Executive, the former reported:

... This report includes a resumee (sic) of the activities we undertook in effecting
the referendum on the eleven questions you wanted our people consulted on and the
Summary of Results thereof for each municipality and for the whole province.

xxx xxx xxx

... Our initial plans and preparations, however, dealt only on the original five
questions. Consequently, when we received an instruction on January 10 to
change the questions, we urgently suspended all scheduled Citizens Assembly
meetings on that day and called all Mayors, Chiefs of Offices and other government
officials to another conference to discuss with them the new set of guidelines and
materials to be used.

On January 11, ... another instruction from the top was received to include the
original five questions among those to be discussed and asked in the Citizens'
Assembly meetings. With this latest order, we again had to make modifications in our
instructions to all those managing and supervising the holding of the Citizens'
Assembly meetings throughout the province. ... Aside from the coordinators we had
from the Office of the Governor, the splendid cooperation and support extended by
almost all government officials and employees in the province, particularly of the
Department of Education, PC and PACD personnel, provided us with enough hands
to trouble shoot and implement sudden changes in the instructions anytime and
anywhere needed. ...

... As to our people, in general, their enthusiastic participation showed their

preference and readiness to accept this new method of government to
people consultation in shaping up government policies.

Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens'
Assembly meetings ..." and call all available officials "... to discuss with them the new set of
guidelines and materials to be used ... ." Then, "on January 11 ... another instruction from the top
was received to include the original five questions among those be discussed and asked in the
Citizens' Assembly meetings. With this latest order, we again had to make modifications in our
instructions to all those managing and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic participation showed their
preference and readiness to accept the new method of government to people consultation in
shaping up government policies."
This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had
still to discuss — not put into operation — means and ways to carry out the changing instructions
from the top on how to organize the citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies; 2) that the assemblies would involve no
more than consultations or dialogues between people and government — not decisions be made by
the people; and 3) that said consultations were aimed only at "shaping up government policies" and,
hence could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a
proposed amendment of a new or revised Constitution for the latter does not entail the formulation of
a policy of the Government, but the making of decision by the people on the new way of life, as a
nation, they wish to have, once the proposed Constitution shall have been ratified.

If this was the situation in Bataan — one of the provinces nearest to Manila — as late as January 11,
1973, one can easily imagine the predicament of the local officials and people in the remote barrios
in northern and southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact,
several members of the Court, including those of their immediate families and their household,
although duly registered voters in the area of Greater Manila, were not even notified that citizens'
assemblies would be held in the places where their respective residences were located. In the
Prohibition and Amendment case, 77 attention was called to the "duty cast upon the court of taking
judicial cognizance of anything affecting the existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another case, the Federal Supreme Court of
the United States stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to
an obvious mistake, when the validity of the law depends upon the truth of what is declared."

In the light of the foregoing, I cannot see how the question under consideration can be answered or
resolved otherwise than in the negative.

Have the people acquiesced in the proposed Constitution?

It is urged that the present Government of the Philippines is now and has been run, since January
17, 1971, under the Constitution drafted by the 1971 Constitutional Convention; that the political
department of the Government has recognized said revised Constitution; that our foreign relations
are being conducted under such new or revised Constitution; that the Legislative Department has
recognized the same; and that the people, in general, have, by their acts or omissions, indicated
their conformity thereto.

As regards the so-called political organs of the Government, gather that respondents refer mainly to
the offices under the Executive Department. In a sense, the latter performs some functions which,
from a constitutional viewpoint, are politics in nature, such as in recognizing a new state or
government, in accepting diplomatic representatives accredited to our Government, and even in
devising administrative means and ways to better carry into effect. Acts of Congress which define
the goals or objectives thereof, but are either imprecise or silent on the particular measures to be
resorted to in order to achieve the said goals or delegate the power to do so, expressly or impliedly,
to the Executive. This, notwithstanding, the political organ of a government that purports to be
republican is essentially the Congress or Legislative Department. Whatever may be the functions
allocated to the Executive Department — specially under a written, rigid Constitution with a
republican system of Government like ours — the role of that Department is inherently, basically and
fundamentally executive in nature — to "take care that the laws be faithfully executed," in the
language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the officers and offices of the Executive
Department, in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence
thereto. Whether they recognized the proposed Constitution or acquiesce thereto or not is something
that cannot legally, much less necessarily or even normally, be deduced from their acts in
accordance therewith, because the are bound to obey and act in conformity with the orders of the
President, under whose "control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under
Martial Law. Besides, by virtue of the very decrees, orders and instructions issued by the President
thereafter, he had assumed all powers of Government — although some question his authority to do
so — and, consequently, there is hardly anything he has done since the issuance of Proclamation
No. 1102, on January 17, 1973 — declaring that the Constitution proposed by the 1971
Constitutional Convention has been ratified by the overwhelming majority of the people — that he
could not do under the authority he claimed to have under Martial Law, since September 21, 1972,
except the power of supervision over inferior courts and its personnel, which said proposed
Constitution would place under the Supreme Court, and which the President has not ostensibly
exercised, except as to some minor routine matters, which the Department of Justice has continued
to handle, this Court having preferred to maintain the status quo in connection therewith pending
final determination of these cases, in which the effectivity of the aforementioned Constitution is
disputed.

Then, again, a given department of the Government cannot generally be said to have
"recognized" its own acts. Recognition normally connotes the acknowledgment by a party of the acts
of another. Accordingly, when a subordinate officer or office of the Government complies with the
commands of a superior officer or office, under whose supervision and control he or it is, the former
merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no
act of recognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise,
would just be guilty of insubordination.

Thus, for instance, the case of Taylor v. Commonwealth 80 — cited by respondents herein in support
of the theory of the people's acquiescence — involved a constitution ordained in 1902 and
"proclaimed by a convention duly called by a direct vote of the people of the state to revise and
amend the Constitution of 1869. The result of the work of that Convention has been recognized,
accepted and acted upon as the only valid Constitution of the State" by —

1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby";

2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the Convention ...";

3. The "individual oaths of its members to support it, and by its having been engaged for nearly a
year, in legislating under it and putting its provisions into
operation ...";

4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions ...";
and

5. The "people in their primary capacity by peacefully accepting it and acquiescing in it, by
registering as voters under it to the extent of thousands throughout the State, and by voting, under
its provisions, at a general election for their representatives in the Congress of the United States."

Note that the New Constitution of Virginia, drafted by a convention whose members were elected
directly by the people, was not submitted to the people for ratification or rejection thereof. But, it was
recognized, not by the convention itself, but by other sectors of the Government, namely, the
Governor; the Legislature — not merely by individual acts of its members, but by formal joint
resolution of its two (2) chambers; by the judiciary; and by the people, in the various ways specified
above. What is more, there was no martial law. In the present cases, none of the foregoing acts of
acquiescence was present. Worse still, there is martial law, the strict enforcement of which was
announced shortly before the alleged citizens' assemblies. To top it all, in the Taylor case, the
effectivity of the contested amendment was not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the Government, and complied with by
the people who participated in the elections held pursuant to the provisions of the new Constitution.
In the cases under consideration, the legality of Presidential Decree No. 73 calling a plebiscite to be
held on January 15, 1973, was impugned as early as December 7, 1972, or five (5)
weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on
January 17, 1973, that the proposed Constitution had been ratified — despite General Order No. 20,
issued on January 7, 1972, formally and officially suspending the plebiscite until further notice —
was impugned as early as January 20, 1973, when L-36142 was filed, or three (3) days after the
issuance of Proclamation No. 1102.

It is further alleged that a majority of the members of our House of Representatives and Senate have
acquiesced in the new or revised Constitution, by filing written statements opting to serve in the Ad
Interim Assembly established in the Transitory Provisions of said Constitution. Individual acts of
recognition by members of our legislature, as well as of other collegiate bodies under the
government, are invalid as acts of said legislature or bodies, unless its members have performed
said acts in session duly assembled, or unless the law provides otherwise, and there is no such law
in the Philippines. This is a well-established principle of Administrative Law and of the Law of Public
Officers, and no plausible reason has been adduced to warrant departure therefrom. 81

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

No matter how good the intention behind these statement may have been, the idea implied therein
was too clear an ominous for any member of Congress who thought of organizing, holding or taking
part in a session of Congress, not to get the impression that he could hardly do so without inviting or
risking the application of Martial Law to him. Under these conditions, I do not feel justified in holding
that the failure of the members of Congress to meet since January 22, 1973, was due to their
recognition, acquiescence in or conformity with the provisions of the aforementioned Constitution, or
its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines
under Martial Law, neither am I prepared to declare that the people's inaction as regards
Proclamation No. 1102, and their compliance with a number of Presidential orders, decrees and/or
instructions — some or many of which have admittedly had salutary effects — issued subsequently
thereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation
No. 1102. In the words of the Chief Executive, "martial law connotespower of the gun,
meant coercion by the military, and compulsion and intimidation." 83 The failure to use the gun
against those who comply with the orders of the party wielding the weapon does not detract from the
intimidation that Martial Law necessarily connotes. It may reflect the good, reasonable and
wholesome attitude of the person who has the gun, either pointed at others, without pulling the
trigger, or merely kept in its holster, but not without warning that he may or would use it if he deemed
it necessary. Still, the intimidation is there, and inaction or obedience of the people, under these
conditions, is not necessarily an act of conformity or acquiescence. This is specially so when we
consider that the masses are, by and large, unfamiliar with the parliamentary system, the new form
of government introduced in the proposed Constitution, with the particularity that it is not even
identical to that existing in England and other parts of the world, and that even experienced lawyers
and social scientists find it difficult to grasp the full implications of some provisions incorporated
therein.

As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the
same refers to a document certified to the President — for his action under the Constitution — by the
Senate President and the Speaker of the House of Representatives, and attested to by the
Secretary of the Senate and the Secretary of the House of Representatives, concerning legislative
measures approved by the two Houses of Congress. The argument of the Solicitor General is,
roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive
upon the President and the judicial branch of the Government, why should Proclamation No. 1102
merit less consideration than in enrolled bill?

Before answering this question, I would like to ask the following: If, instead of being certified by the
aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President
of the Association of Sugar Planters and/or Millers of the Philippines, and the measure in question
were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association,
which even prepared the draft of said legislation, as well as lobbied actually for its approval, for
which reason the officers of the Association, particularly, its aforementioned president — whose
honesty and integrity are unquestionable — were present at the deliberations in Congress when the
same approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, the
answer would have to be in the negative. Why? Simply, because said Association President has
absolutely no official authority to perform in connection therewith, and, hence, his certification is
legally, as good as non-existent.

Similarly, a certification, if any, of the Secretary of the Department of Local Governments and
Community Development about the tabulated results of the voting in the Citizens Assemblies
allegedly held all over the Philippines — and the records do not show that any such certification, to
the President of the Philippines or to the President Federation or National Association of presidents
of Provincial Associations of presidents of municipal association presidents of barrio or ward
assemblies of citizens — would not, legally and constitutionally, be worth the paper on which it is
written. Why? Because said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or
revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the
department which, according to Article X of the Constitution, should not and must not be all
participate in said plebiscite — if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United
States that courts "will not stand impotent before an obvious instance of a manifestly unauthorized
exercise of power." 85

I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to
the proposed Constitution.

VI

Are the Parties entitled to any relief?

Before attempting to answer this question, a few words be said about the procedure followed in
these five (5) cases. In this connection, it should be noted that the Court has not decided whether or
not to give due course to the petitions herein or to require the respondents to answer thereto.
Instead, it has required the respondents to comment on the respective petitions — with three (3)
members of the voting to dismiss them outright — and then considers comments thus submitted by
the respondents as motions to dismiss, as well as set the same for hearing. This was due to the
transcendental nature of the main issue raised, the necessity of deciding the same with utmost
dispatch, and the main defense set up by respondents herein, namely, the alleged political nature of
said issue, placing the same, according to respondents, beyond the ambit of judicial inquiry and
determination. If this defense was sustained, the cases could readily be dismissed; but, owing to the
importance of the questions involved, a reasoned resolution was demanded by public interest. At the
same time, respondents had cautioned against a judicial inquiry into the merits of the issues posed
on account of the magnitude of the evil consequences, it was claimed, which would result from a
decision thereon, if adverse to the Government.

As a matter of fact, some of those issues had been raised in the plebiscite cases, which were
dismissed as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently to
the filing of said cases, although before the rendition of judgment therein. Still one of the members of
the Court (Justice Zaldivar) was of the opinion that the aforementioned issues should be settled in
said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On the other hand,
three (3) members of the Court — Justices Barredo, Antonio and Esguerra — filed separate opinions
favorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935
Constitution has pro tanto passed into history and has been legitimately supplanted by the
Constitution in force by virtue of Proclamation 1102." 86 When the petitions at bar were filed, the
same three (3) members of the Court, consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share, however, either view, believing that the main
question that arose before the rendition of said judgment had not been sufficiently discussed and
argued as the nature and importance thereof demanded.

The parties in the cases at bar were accordingly given every possible opportunity to do so and to
elucidate on and discuss said question. Thus, apart from hearing the parties in oral argument for five
(5) consecutive days — morning and afternoon, or a total of exactly 26 hours and 31 minutes — the
respective counsel filed extensive notes on their or arguments, as well as on such additional
arguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders
thereto, aside from a sizeable number of document in support of their respective contentions, or as
required by the Court. The arguments, oral and written, submitted have been so extensive and
exhaustive, and the documents filed in support thereof so numerous and bulky, that, for all intents
and purposes, the situation is as if — disregarding forms — the petitions had been given due course
and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they should express their views
on the aforementioned issues as if the same were being decided on the merits, and they have done
so in their individual opinion attached hereto. Hence, the resume of the votes cast and the tenor of
the resolution, in the last pages hereof, despite the fact that technically the Court has not, as yet,
formally given due course to the petitions herein.

And, now, here are my views on the reliefs sought by the parties.

In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat
and Jose Roy, President and President Pro Tempore respectively of the Senate, it being settled in
our jurisdiction, based upon the theory of separation of powers, that the judiciary will not issue such
writ to the head of a co-equal department, like the aforementioned officers of the Senate.

In all other respects and with regard to the other respondent in said case, as well as in cases L-
36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given due
course, there being more than prima facie showing that the proposed Constitution has not been
ratified in accordance with Article XV of the 1935 Constitution, either strictly, substantially, or has
been acquiesced in by the people or majority thereof; that said proposed Constitution is not in
force and effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without
prejudice to the submission of said proposed Constitution to the people at a plebiscite for its
ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the
provisions of the Revised Election Code in force at the time of such plebiscite.

Perhaps others would feel that my position in these cases overlooks what they might consider to be
the demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am aware
of this possibility, if not probability; but "judicial statesmanship," though consistent with Rule of
Law, cannot prevail over the latter. Among consistent ends or consistent values, there always is a
hierarchy, a rule of priority.

We must realize that the New Society has many achievements which would have been very difficult,
if not impossible, to accomplish under the old dispensation. But, in and for the judiciary,
statesmanship should not prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule
of Law and faithful adherence thereto are basic, fundamental and essential parts of statesmanship
itself.

Resume of the Votes Cast and the Court's Resolution

As earlier stated, after the submittal by the members of the Court of their individual opinions and/or
concurrences as appended hereto, the writer will now make, with the concurrence of his colleagues,
a resume or summary of the votes cast by each of them.

It should be stated that by virtue of the various approaches and views expressed during the
deliberations, it was agreed to synthesize the basic issues at bar in broad general terms in five
questions for purposes of taking the votes. It was further agreed of course that each member of the
Court would expound in his individual opinion and/or concurrence his own approach to the stated
issues and deal with them and state (or not) his opinion thereon singly or jointly and with such
priority, qualifications and modifications as he may deem proper, as well as discuss thereon other
related issues which he may consider vital and relevant to the cases at bar.

The five questions thus agreed upon as reflecting the basic issues herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-
justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with
substantial, if not strict, compliance) conformably to the applicable constitutional and statutory
provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by
the people?

4. Are petitioners entitled to relief? and

5. Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual views expressed by the members of the Court in
their respect opinions and/or concurrences, are as follows:

1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity
of Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal and
Castro did not vote squarely on this question, but, only inferentially, in their discussion of the second
question. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has been
approval by the people, the Court may inquire into the question of whether or not there has actually
been such an approval, and, in the affirmative, the Court should keep hands-off out of respect to the
people's will, but, in negative, the Court may determine from both factual and legal angles whether or
not Article XV of the 1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra,
or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial
inquiry."

2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of the Court also hold that the Constitution
proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article
XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an
election or plebiscite held in accordance with law and participated in only by qualified and duly
registered voters. 87

Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been
validly ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regarding
the meaning and intent of said Article, the referendum in the Citizens' Assemblies, specially in the
manner the votes therein were cast, reported and canvassed, falls short of the requirements thereof.
In view, however, of the fact that I have no means of refusing to recognize as a judge that factually
there was voting and that the majority of the votes were for considering as approved the 1973
Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I am
constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be
deemed to have cast their favorable votes in the belief that in doing so they did the part required of
them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after
all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been
constitutionally ratified."

Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their
view there has been in effect substantial compliance with the constitutional requirements for valid
ratification.
3. On the third question of acquiescence by the Filipino people in the aforementioned proposed
Constitution, no majority vote has been reached by the Court.

Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the
people have already accepted the 1973 Constitution."

Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free
expression, and there has even been no expression, by the people qualified to vote all over the
Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American decisions
to the effect that independently of the validity of the ratification, a new Constitution once accepted
acquiesced in by the people must be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in view of the shortness of time that has
elapsed and the difficulty of ascertaining what is the mind of the people in the absence of the
freedom of debate that is a concomitant feature of martial law." 88

Three (3) members of the Court express their lack of knowledge and/or competence to rule on the
question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that
"Under a regime of martial law, with the free expression of opinions through the usual media vehicle
restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people
have accepted the Constitution." 89

4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and
Castro so voted on the strength of their view that "(T)he effectivity of the said Constitution, in the final
analysis, is the basic and ultimate question posed by these cases to resolve which considerations
other than judicial, an therefore beyond the competence of this Court, 90 are relevant and
unavoidable." 91

Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted
to deny respondents' motion to dismiss and to give due course to the petitions.

5. On the fifth question of whether the new Constitution of 1973 is in force:

Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that it is in force by virtue of the people's acceptance thereof;

Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and
Teehankee cast no vote thereon on the premise stated in their votes on the third
question that they could not state with judicial certainty whether the people have
accepted or not accepted the Constitution; and

Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the
Constitution proposed by the 1971 Constitutional Convention is not in force;

with the result that there are not enough votes to declare that the new Constitution is not in force.

ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices
Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new Constitution being considered
in force and effect.

It is so ordered.

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

ANNEX A

PERTINENT PORTIONS

OF THE

MINNESSOTA SUPREME COURT

DECISION

ON THE CASE

IN RE McCONAUGHY

"(a) An examination of the decisions shows that the courts have almost uniformly exercised the
authority to determine the validity of the proposal, submission, or ratification of constitutional
amendments. It has been judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96
S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio
St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W.
779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind.
104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed
amendment is a single amendment, within the constitutional requirement that every amendment
must be separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago,
etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re Denny, 156
Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v.
Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. 450;
State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the
resolution of submission upon the legislative journals invalidates the amendment (Koehler v. Hill, 60
Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v.
State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19
Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the amendment and the form
of the ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W.
1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the
method of submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164
Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a notice relative to it is
sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63
S.W. 849); whether the submission may be well by resolution as by a legislative act approved by the
executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78,
60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho,
154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the
amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It is contended that the
determination of the question whether an amendment to the Constitution has been carried involves
the exercise of political, and not judicial, power. If this be so, it follows that the promulgation of any
purported amendment by the executive or any executive department is final, and that the action
cannot be questioned by the judiciary; but, with reference to the conditions precedent to submitting a
proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highest
respectability, that it is within the power of the judiciary to inquire into the question, even in a
collateral proceeding. ... It is to be noted that under section 1 of article 20 of the Constitution of the
state no amendment can become a part of the Constitution until ratified by a vote of the people. One
prerequisite is equally as essential as the other. The amendment must first receive the requisite
majority in the Legislature, and afterwards be adopted by the requisite vote. ... It is the fact of a
majority vote which makes the amendment a part of the Constitution."

"In considering the cases it is necessary to note whether in the particular case the court was called
upon to determine between rival governments, or whether the Legislature, or some board or official,
had legally performed the duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo.
303, 29 Am. Dec. 636, it was held that the General Assembly, under the power granted by the
Constitution, could change the Constitution only in the manner prescribed by it, and that it was the
duty of the court to determine whether all prerequisites had been complied with. In Collier v.
Frierson, 24 Ala. 100, it was held that a Constitution can be changes only by the people in
convention or in a mode described by the Constitution itself, and that if the latter mode is
adopted every requisite of the Constitution must be observed. 'It has been said," says the court, "that
certain acts are to be done, certain requisitions are to be observed, before a change can be effected;
but to what purpose are these acts required, or these requisitions enjoined, if the Legislature or any
other department of the government can dispense with them. To do so would be to violate the
instrument which they are sworn to support; and every principle of public law and sound
constitutional policy requires the court to pronounce against every amendment which is shown not to
have been made in accordance with the rules prescribed by the fundamental law.'

"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form
an original Constitution, or abrogate an old one and form a new one, at any time, without any
political restriction, except the Constitution of the United States, but if they undertake to add an
amendment, by the authority of legislation to a Constitution already in existence, they can do it only
by the method pointed out by the Constitution to which the amendment is added. The power to
amend a Constitution by legislative action does not confer the power to break it, any more than it
confers the power to legislate on any other subject contrary to its prohibitions.' So, in State v. Timme,
54 Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the Constitution of the
state without a compliance with the provisions thereof, both in the passage of such amendment by
the Legislature and the manner of submitting it to the people. The courts have not all agreed as to
the strictness of compliance which should be required.

"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an
amendment to the Constitution had been legally adopted. After approving the statement quoted
from Collier v. Frierson, supra, that 'we entertain no doubt that, to change the Constitution in an
other mode than by a convention, every requisite which is demanded by the instrument itself must
be observed, and the omission of any one is fatal to the amendment,' the court held that, 'as
substance of right is grander and more potent than methods of form,' there had been substantial
compliance with the constitutional requirement that a proposed amendment to the Constitution must
be entered at length on the legislative journal. It appears that the joint resolution making submission
simply provided that a proposition should be submitted to the electors at the general election of
1880. It did not declare that the machinery of the general election law should control, or that any
particular officers or board would receive, count, or canvass the votes cast. But the existing election
machinery was adequate, and the votes were received, counted, and canvassed, and the result
declared as fully as though it had been in terms so ordered. These methods had been followed in
the adoption of previous amendments, and was held that, conceding the irregularity of the
proceedings the Legislature and the doubtful scope of the provisions for the election, yet in view of
the very uncertainty of such provision the past legislative history of similar propositions, the universal
prior acquiescence in the same forms of procedure and the popular and unchallenged acceptance of
the legal pendency before the people of the question of the amendment for decision, and in view
of the duty cast upon the court taking judicial knowledge of anything affecting the existence and
validity of any law or portion of the Constitution, it must be adjudged that the proposed amendment
became part of the Constitution. The effect was to hold that a provision of the Constitution requiring
the proposed amendment to be entered in full on the journals was directory, and not mandatory.
This liberal view was approved in State v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and
People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been universally
accepted.

"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansas
case said: 'The reasoning by which the learned court reached the conclusion it did is not based
on any sound legal principles, but contrary to them. Neither the argument nor the conclusion can
command our assent or approval. The argument is illogical, and based on premises which
are without any sound foundation, and rests merely on assumption.' See, also, the well-considered
case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the
jurisdiction of the court to determine whether, in submitting a proposed amendment to the people,
the Legislature legally observed the constitutional provisions as to the manner of procedure.
In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance of a
citizen and a taxpayer, restrained the Secretary of State from taking steps to submit to the people a
proposed amendment to the Constitution agreed to by the Legislature on the ground that the
Legislature had not acted in conformity with the Constitution and that the proposed amendment was
of such a character that it could not properly become a part of the Constitution. The Supreme Court
of Colorado, in People v. Sours, supra, refused to exercise this authority.

"The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738,
15 N.W. 609. The amendment, which concededly had been adopted by the people, had not, before
its submission, been entered in full upon the legislative journals, as required by the Constitution, and
it was held that this was a material variance in both form and substance from the constitutional
requirements, and that the amendment did not, therefore, become a part of the Constitution. As to
the claim that the question was political, and not judicial, it was said that, while it is not competent for
courts to inquire into the validity of the Constitution and the form of government under which they
themselves exist, and from which they derive their powers, yet, where the existing Constitution
prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in
strict conformity to that method; and it is the duty of the courts in a proper case, when an
amendment does not relate to their own power or functions, to inquire whether, in the adoption of the
amendment, the provisions of the existing Constitution have been observed, and, if not, to declare
the amendment invalid and of no force. This case was followed in State v. Brookhart, 113 Iowa, 250,
84 N.W. 1064.

"In University v. McIver, 72 N.C. 76, the question whether a proposed amendment to the Constitution
had been legally adopted was treated as a judicial question. By the Constitution a proposed
amendment was required to be approved by Legislatures before its submission to the people. In this
instance a bill was passed which contained 17 amendments. The next Legislature rejected 9 and
adopted 8 of the amendments, and submitted them to the people. The majority of the people voted
for their adoption; but it was contended that the Constitution contemplated and required that the
same bill and the same amendments, without change, should approved by both Legislatures, and
that it did not follow because the second Legislature adopted separately 8 out of 17 amendments
adopted by the first Legislature, it would have adopted the 17, or any of them, if they had been voted
upon the second in the form adopted by the first body. The substance of the contention was that
there had not been a concurrence of the twoLegislatures on the same amendments, according to the
letter and spirit of the Constitution. The court held that the power of the Legislature in submitting
amendments could not be distinguished from the powers of convention, and that, as the people had
spoken and ratified the amendments, they became a part of the Constitution.

"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a proposed
amendment to Constitution could not be submitted to the people at any other than a general
election; but, as the amendment under consideration had been submitted after the Constitution been
changed, it had been legally submitted and adopted.

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

"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held that it was the duty of
the judicial department of the government to determine whether the legislative department or its
officers had observed the constitutional injunctions in attempting to amend the Constitution, and to
annul their acts if they had not done so. The case is an interesting and well-considered one. The
Constitution provided the manner in which proposed amendments should be submitted to the
people, but did not provide a method for canvassing the votes. The Legislature having agreed to
certain proposed amendments, passed an act for submitting the same to the people. This statute
provided for the transmission to the Secretary of State of certificate showing the result of the voting
throughout the state, and made it the duty of the Governor at the designated time summon four or
more Senators, who, with the Governor, should constitute a board of state canvassers to canvass
and estimate the votes for and against each amendment. This board was to determine and declare
which of the proposed amendments had been adopted and to deliver a statement of the results to
the Secretary of State, and "any proposed amendment, which by said certificate and determination
of the board of canvassers shall appear to have received in its favor the majority of all the votes cast
in the state for and against said proposed amendment, shall from the time of filing such certificate be
and become an amendment to and a part of the Constitution of the state; and it shall be the duty of
the Governor of the state forthwith, after such a determination, to issue a proclamation declaring
which of the said proposed amendments have been adopted by the people." This board was
required to file a statement of the result of the election, and the Governor to issue his proclamation
declaring that the amendment had been adopted and become a part of the Constitution. At the
instance of a taxpayer the Supreme Court allowed a writ of certiorari to remove into the court for
review the statement of the results of the election made by the canvassing board, in order that it
might be judicially determined whether on the facts shown in that statement the board had legally
determined that the proposed amendment had been adopted. The Supreme Court decided that the
concurrence of the board of state canvassers and the executive department of the government in
their respective official functions placed the subject-matter beyond the cognizance of the judicial
department of the state. The Court of Appeals, after a full review of the authorities, reversed this
decision, and held that the questions were of a judicial nature, and properly determinable by the
court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus becomes manifest that
there was present in the Supreme Court, and is now pending in this court, every element tending to
maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial
department of the government has not the right to consider whether the legislative department and
its agencies have observed constitutional injunctions in attempting to amend the Constitution, and to
annul their acts in case that they have not done so. That such a proposition is not true seems to be
indicated by the whole history of jurisprudence in this country.' The court, after considering the case
on the merits, held that the proper conclusion had been drawn therefrom, and that the amendment in
question was legally submitted and adopted.

"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question
which we have under consideration. In reference to the contention that the Constitution intended to
delegate to the Speaker of the House of Representatives the power to determine whether an
amendment had been adopted, and that the question was political, and not judicial, the court
observed: "The argument has often been made in similar cases to the courts, and it is found in many
dissenting opinions; but, with probably a few exceptions, it is not found in any prevailing opinion."

"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutional
requirement of publication of a proposed constitutional provision for three months prior to the
election at which it is to be submitted to the people is mandatory and that noncompliance therewith
renders the adoption of an amendment of no effect."

ANNEX B

MALACAÑANG

MANILA

BY THE PRESIDENT OF THE PHILIPPINES

PRESIDENTIAL DECREE NO. 86-B

Defining Further the Role of Barangays (Citizens Assemblies)

WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972,
the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them
for resolution important national issues;

WHEREAS, one of the questions persistently mention refers to the ratification of the Constitution
proposed by the 1971 Constitutional Convention;

WHEREAS, on the basis of the said petitions, it is evident that the people believe that the
submission of the proposed Constitution to the Citizens Assemblies or Barangays should taken as a
plebiscite in itself in view of the fact that freedom of debate has always been limited to the leadership
in political, economic and social fields, and that it is now necessary to bring this down to the level of
the people themselves through the Barangays or Citizens Assemblies;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers in me vested by the Constitution, do hereby order that important national issues shall from
time to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 an that the initial referendum shall include the
matter of ratification of the Constitution proposed by the 1971 Constitutional Convention.

The Secretary of the Department of Local Government and Community Development shall insure
the implementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and
seventy-three.

(SGD.) FERDINAND
E. MARCOS

By the President:

(SGD.) ALEJANDRO MELCHOR

Executive Secretary
G.R. No. 176579 June 28, 2011

WILSON P. GAMBOA, Petitioner,

vs.
FINANCE SECRETARY MARGARITO B. TEVES, FINANCE UNDERSECRETARY JOHN P.
SEVILLA, AND COMMISSIONER RICARDO ABCEDE OF THE PRESIDENTIAL COMMISSION
ON GOOD GOVERNMENT (PCGG) IN THEIR CAPACITIES AS CHAIR AND MEMBERS,
RESPECTIVELY, OF THE PRIVATIZATION COUNCIL, CHAIRMAN ANTHONI SALIM OF FIRST
PACIFIC CO., LTD. IN HIS CAPACITY AS DIRECTOR OF METRO PACIFIC ASSET HOLDINGS
INC., CHAIRMAN MANUEL V. PANGILINAN OF PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY (PLDT) IN HIS CAPACITY AS MANAGING DIRECTOR OF FIRST PACIFIC CO., LTD.,
PRESIDENT NAPOLEON L. NAZARENO OF PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, CHAIR FE BARIN OF THE SECURITIES EXCHANGE COMMISSION, and
PRESIDENT FRANCIS LIM OF THE PHILIPPINE STOCK EXCHANGE, Respondents.
PABLITO V. SANIDAD and ARNO V. SANIDAD, Petitioners-in-Intervention.

DECISION

CARPIO, J.:

The Case

This is an original petition for prohibition, injunction, declaratory relief and declaration of nullity of the
sale of shares of stock of Philippine Telecommunications Investment Corporation (PTIC) by the
government of the Republic of the Philippines to Metro Pacific Assets Holdings, Inc. (MPAH), an
affiliate of First Pacific Company Limited (First Pacific).

The Antecedents

The facts, according to petitioner Wilson P. Gamboa, a stockholder of Philippine Long Distance
Telephone Company (PLDT), are as follows:1

On 28 November 1928, the Philippine Legislature enacted Act No. 3436 which granted PLDT a
franchise and the right to engage in telecommunications business. In 1969, General Telephone and
Electronics Corporation (GTE), an American company and a major PLDT stockholder, sold 26
percent of the outstanding common shares of PLDT to PTIC. In 1977, Prime Holdings, Inc. (PHI)
was incorporated by several persons, including Roland Gapud and Jose Campos, Jr. Subsequently,
PHI became the owner of 111,415 shares of stock of PTIC by virtue of three Deeds of Assignment
executed by PTIC stockholders Ramon Cojuangco and Luis Tirso Rivilla. In 1986, the 111,415
shares of stock of PTIC held by PHI were sequestered by the Presidential Commission on Good
Government (PCGG). The 111,415 PTIC shares, which represent about 46.125 percent of the
outstanding capital stock of PTIC, were later declared by this Court to be owned by the Republic of
the Philippines.2

In 1999, First Pacific, a Bermuda-registered, Hong Kong-based investment firm, acquired the
remaining 54 percent of the outstanding capital stock of PTIC. On 20 November 2006, the Inter-
Agency Privatization Council (IPC) of the Philippine Government announced that it would sell the
111,415 PTIC shares, or 46.125 percent of the outstanding capital stock of PTIC, through a public
bidding to be conducted on 4 December 2006. Subsequently, the public bidding was reset to 8
December 2006, and only two bidders, Parallax Venture Fund XXVII (Parallax) and Pan-Asia
Presidio Capital, submitted their bids. Parallax won with a bid of ₱25.6 billion or US$510 million.
Thereafter, First Pacific announced that it would exercise its right of first refusal as a PTIC
stockholder and buy the 111,415 PTIC shares by matching the bid price of Parallax. However, First
Pacific failed to do so by the 1 February 2007 deadline set by IPC and instead, yielded its right to
PTIC itself which was then given by IPC until 2 March 2007 to buy the PTIC shares. On 14 February
2007, First Pacific, through its subsidiary, MPAH, entered into a Conditional Sale and Purchase
Agreement of the 111,415 PTIC shares, or 46.125 percent of the outstanding capital stock of PTIC,
with the Philippine Government for the price of ₱25,217,556,000 or US$510,580,189. The sale was
completed on 28 February 2007.

Since PTIC is a stockholder of PLDT, the sale by the Philippine Government of 46.125 percent of
PTIC shares is actually an indirect sale of 12 million shares or about 6.3 percent of the outstanding
common shares of PLDT. With the sale, First Pacific’s common shareholdings in PLDT
increased from 30.7 percent to 37 percent, thereby increasing the common shareholdings of
foreigners in PLDT to about 81.47 percent. This violates Section 11, Article XII of the 1987
Philippine Constitution which limits foreign ownership of the capital of a public utility to not more than
40 percent.3

On the other hand, public respondents Finance Secretary Margarito B. Teves, Undersecretary John
P. Sevilla, and PCGG Commissioner Ricardo Abcede allege the following relevant facts:

On 9 November 1967, PTIC was incorporated and had since engaged in the business of investment
holdings. PTIC held 26,034,263 PLDT common shares, or 13.847 percent of the total PLDT
outstanding common shares. PHI, on the other hand, was incorporated in 1977, and became the
owner of 111,415 PTIC shares or 46.125 percent of the outstanding capital stock of PTIC by virtue of
three Deeds of Assignment executed by Ramon Cojuangco and Luis Tirso Rivilla. In 1986, the
111,415 PTIC shares held by PHI were sequestered by the PCGG, and subsequently declared by
this Court as part of the ill-gotten wealth of former President Ferdinand Marcos. The sequestered
PTIC shares were reconveyed to the Republic of the Philippines in accordance with this Court’s
decision4 which became final and executory on 8 August 2006.

The Philippine Government decided to sell the 111,415 PTIC shares, which represent 6.4 percent of
the outstanding common shares of stock of PLDT, and designated the Inter-Agency Privatization
Council (IPC), composed of the Department of Finance and the PCGG, as the disposing entity. An
invitation to bid was published in seven different newspapers from 13 to 24 November 2006. On 20
November 2006, a pre-bid conference was held, and the original deadline for bidding scheduled on 4
December 2006 was reset to 8 December 2006. The extension was published in nine different
newspapers.

During the 8 December 2006 bidding, Parallax Capital Management LP emerged as the highest
bidder with a bid of ₱25,217,556,000. The government notified First Pacific, the majority owner of
PTIC shares, of the bidding results and gave First Pacific until 1 February 2007 to exercise its right
of first refusal in accordance with PTIC’s Articles of Incorporation. First Pacific announced its
intention to match Parallax’s bid.

On 31 January 2007, the House of Representatives (HR) Committee on Good Government

conducted a public hearing on the particulars of the then impending sale of the 111,415 PTIC
shares. Respondents Teves and Sevilla were among those who attended the public hearing. The
HR Committee Report No. 2270 concluded that: (a) the auction of the government’s 111,415 PTIC
shares bore due diligence, transparency and conformity with existing legal procedures; and (b) First
Pacific’s intended acquisition of the government’s 111,415 PTIC shares resulting in First
Pacific’s 100% ownership of PTIC will not violate the 40 percent constitutional limit on foreign
ownership of a public utility since PTIC holds only 13.847 percent of the total outstanding
common shares of PLDT.5 On 28 February 2007, First Pacific completed the acquisition of the
111,415 shares of stock of PTIC.

Respondent Manuel V. Pangilinan admits the following facts: (a) the IPC conducted a public bidding
for the sale of 111,415 PTIC shares or 46 percent of the outstanding capital stock of PTIC (the
remaining 54 percent of PTIC shares was already owned by First Pacific and its affiliates); (b)
Parallax offered the highest bid amounting to ₱25,217,556,000; (c) pursuant to the right of first
refusal in favor of PTIC and its shareholders granted in PTIC’s Articles of Incorporation, MPAH, a
First Pacific affiliate, exercised its right of first refusal by matching the highest bid offered for PTIC
shares on 13 February 2007; and (d) on 28 February 2007, the sale was consummated when MPAH
paid IPC ₱25,217,556,000 and the government delivered the certificates for the 111,415 PTIC
shares. Respondent Pangilinan denies the other allegations of facts of petitioner.

On 28 February 2007, petitioner filed the instant petition for prohibition, injunction, declaratory relief,
and declaration of nullity of sale of the 111,415 PTIC shares. Petitioner claims, among others, that
the sale of the 111,415 PTIC shares would result in an increase in First Pacific’s common
shareholdings in PLDT from 30.7 percent to 37 percent, and this, combined with Japanese NTT
DoCoMo’s common shareholdings in PLDT, would result to a total foreign common shareholdings in
PLDT of 51.56 percent which is over the 40 percent constitutional limit.6 Petitioner asserts:

If and when the sale is completed, First Pacific’s equity in PLDT will go up from 30.7 percent to 37.0
percent of its common – or voting- stockholdings, x x x. Hence, the consummation of the sale will put
the two largest foreign investors in PLDT – First Pacific and Japan’s NTT DoCoMo, which is the
world’s largest wireless telecommunications firm, owning 51.56 percent of PLDT common equity. x x
x With the completion of the sale, data culled from the official website of the New York Stock
Exchange (www.nyse.com) showed that those foreign entities, which own at least five percent of
common equity, will collectively own 81.47 percent of PLDT’s common equity. x x x

x x x as the annual disclosure reports, also referred to as Form 20-K reports x x x which PLDT
submitted to the New York Stock Exchange for the period 2003-2005, revealed that First Pacific and
several other foreign entities breached the constitutional limit of 40 percent ownership as early as
2003. x x x"7

Petitioner raises the following issues: (1) whether the consummation of the then impending sale of
111,415 PTIC shares to First Pacific violates the constitutional limit on foreign ownership of a public
utility; (2) whether public respondents committed grave abuse of discretion in allowing the sale of the
111,415 PTIC shares to First Pacific; and (3) whether the sale of common shares to foreigners in
excess of 40 percent of the entire subscribed common capital stock violates the constitutional limit
on foreign ownership of a public utility.8

On 13 August 2007, Pablito V. Sanidad and Arno V. Sanidad filed a Motion for Leave to Intervene
and Admit Attached Petition-in-Intervention. In the Resolution of 28 August 2007, the Court granted
the motion and noted the Petition-in-Intervention.

Petitioners-in-intervention "join petitioner Wilson Gamboa x x x in seeking, among others, to enjoin

and/or nullify the sale by respondents of the 111,415 PTIC shares to First Pacific or assignee."
Petitioners-in-intervention claim that, as PLDT subscribers, they have a "stake in the outcome of the
controversy x x x where the Philippine Government is completing the sale of government owned
assets in [PLDT], unquestionably a public utility, in violation of the nationality restrictions of the
Philippine Constitution."

The Issue
This Court is not a trier of facts. Factual questions such as those raised by petitioner,9 which
indisputably demand a thorough examination of the evidence of the parties, are generally beyond
this Court’s jurisdiction. Adhering to this well-settled principle, the Court shall confine the resolution
of the instant controversy solely on the threshold and purely legal issue of whether the term
"capital" in Section 11, Article XII of the Constitution refers to the total common shares only or to the
total outstanding capital stock (combined total of common and non-voting preferred shares) of PLDT,
a public utility.

The Ruling of the Court

The petition is partly meritorious.

Petition for declaratory relief treated as petition for mandamus

At the outset, petitioner is faced with a procedural barrier. Among the remedies petitioner seeks, only
the petition for prohibition is within the original jurisdiction of this court, which however is not
exclusive but is concurrent with the Regional Trial Court and the Court of Appeals. The actions for
declaratory relief,10 injunction, and annulment of sale are not embraced within the original jurisdiction
of the Supreme Court. On this ground alone, the petition could have been dismissed outright.

While direct resort to this Court may be justified in a petition for prohibition,11 the Court shall
nevertheless refrain from discussing the grounds in support of the petition for prohibition since on 28
February 2007, the questioned sale was consummated when MPAH paid IPC ₱25,217,556,000 and
the government delivered the certificates for the 111,415 PTIC shares.

However, since the threshold and purely legal issue on the definition of the term "capital" in Section
11, Article XII of the Constitution has far-reaching implications to the national economy, the Court
treats the petition for declaratory relief as one for mandamus.12

In Salvacion v. Central Bank of the Philippines,13 the Court treated the petition for declaratory relief
as one for mandamus considering the grave injustice that would result in the interpretation of a
banking law. In that case, which involved the crime of rape committed by a foreign tourist against a
Filipino minor and the execution of the final judgment in the civil case for damages on the tourist’s
dollar deposit with a local bank, the Court declared Section 113 of Central Bank Circular No. 960,
exempting foreign currency deposits from attachment, garnishment or any other order or process of
any court, inapplicable due to the peculiar circumstances of the case. The Court held that "injustice
would result especially to a citizen aggrieved by a foreign guest like accused x x x" that would
"negate Article 10 of the Civil Code which provides that ‘in case of doubt in the interpretation or
application of laws, it is presumed that the lawmaking body intended right and justice to prevail.’"
The Court therefore required respondents Central Bank of the Philippines, the local bank, and the
accused to comply with the writ of execution issued in the civil case for damages and to release the
dollar deposit of the accused to satisfy the judgment.

In Alliance of Government Workers v. Minister of Labor,14 the Court similarly brushed aside the
procedural infirmity of the petition for declaratory relief and treated the same as one for mandamus.
In Alliance, the issue was whether the government unlawfully excluded petitioners, who were
government employees, from the enjoyment of rights to which they were entitled under the law.
Specifically, the question was: "Are the branches, agencies, subdivisions, and instrumentalities of
the Government, including government owned or controlled corporations included among the four
‘employers’ under Presidential Decree No. 851 which are required to pay their employees x x x a
thirteenth (13th) month pay x x x ?" The Constitutional principle involved therein affected all
government employees, clearly justifying a relaxation of the technical rules of procedure, and
certainly requiring the interpretation of the assailed presidential decree.

In short, it is well-settled that this Court may treat a petition for declaratory relief as one for
mandamus if the issue involved has far-reaching implications. As this Court held in Salvacion:

The Court has no original and exclusive jurisdiction over a petition for declaratory relief. However,
exceptions to this rule have been recognized. Thus, where the petition has far-reaching
implications and raises questions that should be resolved, it may be treated as one for
mandamus.15 (Emphasis supplied)

In the present case, petitioner seeks primarily the interpretation of the term "capital" in Section 11,
Article XII of the Constitution. He prays that this Court declare that the term "capital" refers to
common shares only, and that such shares constitute "the sole basis in determining foreign equity in
a public utility." Petitioner further asks this Court to declare any ruling inconsistent with such
interpretation unconstitutional.

The interpretation of the term "capital" in Section 11, Article XII of the Constitution has far-reaching
implications to the national economy. In fact, a resolution of this issue will determine whether
Filipinos are masters, or second class citizens, in their own country. What is at stake here is whether
Filipinos or foreigners will have effective control of the national economy. Indeed, if ever there is a
legal issue that has far-reaching implications to the entire nation, and to future generations of
Filipinos, it is the threshhold legal issue presented in this case.

The Court first encountered the issue on the definition of the term "capital" in Section 11, Article XII
of the Constitution in the case of Fernandez v. Cojuangco, docketed as G.R. No. 157360.16 That
case involved the same public utility (PLDT) and substantially the same private respondents. Despite
the importance and novelty of the constitutional issue raised therein and despite the fact that the
petition involved a purely legal question, the Court declined to resolve the case on the merits, and
instead denied the same for disregarding the hierarchy of courts.17There, petitioner Fernandez
assailed on a pure question of law the Regional Trial Court’s Decision of 21 February 2003 via a
petition for review under Rule 45. The Court’s Resolution, denying the petition, became final on 21
December 2004.

The instant petition therefore presents the Court with another opportunity to finally settle this purely
legal issuewhich is of transcendental importance to the national economy and a fundamental
requirement to a faithful adherence to our Constitution. The Court must forthwith seize such
opportunity, not only for the benefit of the litigants, but more significantly for the benefit of the entire
Filipino people, to ensure, in the words of the Constitution, "a self-reliant and independent national
economy effectively controlled by Filipinos."18 Besides, in the light of vague and confusing
positions taken by government agencies on this purely legal issue, present and future foreign
investors in this country deserve, as a matter of basic fairness, a categorical ruling from this Court on
the extent of their participation in the capital of public utilities and other nationalized businesses.

Despite its far-reaching implications to the national economy, this purely legal issue has remained
unresolved for over 75 years since the 1935 Constitution. There is no reason for this Court to evade
this ever recurring fundamental issue and delay again defining the term "capital," which appears not
only in Section 11, Article XII of the Constitution, but also in Section 2, Article XII on co-production
and joint venture agreements for the development of our natural resources,19 in Section 7, Article XII
on ownership of private lands,20 in Section 10, Article XII on the reservation of certain investments to
Filipino citizens,21 in Section 4(2), Article XIV on the ownership of educational institutions,22 and in
Section 11(2), Article XVI on the ownership of advertising companies.23
 Petitioner has locus standi

There is no dispute that petitioner is a stockholder of PLDT. As such, he has the right to question the
subject sale, which he claims to violate the nationality requirement prescribed in Section 11, Article
XII of the Constitution. If the sale indeed violates the Constitution, then there is a possibility that
PLDT’s franchise could be revoked, a dire consequence directly affecting petitioner’s interest as a
stockholder.

More importantly, there is no question that the instant petition raises matters of transcendental
importance to the public. The fundamental and threshold legal issue in this case, involving the
national economy and the economic welfare of the Filipino people, far outweighs any perceived
impediment in the legal personality of the petitioner to bring this action.

In Chavez v. PCGG,24 the Court upheld the right of a citizen to bring a suit on matters of
transcendental importance to the public, thus:

In Tañada v. Tuvera, the Court asserted that when the issue concerns a public right and the
object of mandamus is to obtain the enforcement of a public duty, the people are regarded as
the real parties in interest; and because it is sufficient that petitioner is a citizen and as such
is interested in the execution of the laws, he need not show that he has any legal or special
interest in the result of the action. In the aforesaid case, the petitioners sought to enforce their
right to be informed on matters of public concern, a right then recognized in Section 6, Article IV of
the 1973 Constitution, in connection with the rule that laws in order to be valid and enforceable must
be published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners’
legal standing, the Court declared that the right they sought to be enforced ‘is a public right
recognized by no less than the fundamental law of the land.’

Legaspi v. Civil Service Commission, while reiterating Tañada, further declared that ‘when a
mandamus proceeding involves the assertion of a public right, the requirement of personal
interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the
general ‘public’ which possesses the right.’

Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been
involved under the questioned contract for the development, management and operation of the
Manila International Container Terminal, ‘public interest [was] definitely involved considering
the important role [of the subject contract] . . . in the economic development of the country
and the magnitude of the financial consideration involved.’ We concluded that, as a
consequence, the disclosure provision in the Constitution would constitute sufficient authority for
upholding the petitioner’s standing. (Emphasis supplied)

Clearly, since the instant petition, brought by a citizen, involves matters of transcendental public
importance, the petitioner has the requisite locus standi.

Definition of the Term "Capital" in

Section 11, Article XII of the 1987 Constitution

Section 11, Article XII (National Economy and Patrimony) of the 1987 Constitution mandates the
Filipinization of public utilities, to wit:

Section 11. No franchise, certificate, or any other form of authorization for the operation of a
public utility shall be granted except to citizens of the Philippines or to corporations or
associations organized under the laws of the Philippines, at least sixty per centum of whose
capital is owned by such citizens; nor shall such franchise, certificate, or authorization be
exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right
be granted except under the condition that it shall be subject to amendment, alteration, or repeal by
the Congress when the common good so requires. The State shall encourage equity participation in
public utilities by the general public. The participation of foreign investors in the governing body of
any public utility enterprise shall be limited to their proportionate share in its capital, and all the
executive and managing officers of such corporation or association must be citizens of the
Philippines. (Emphasis supplied)

The above provision substantially reiterates Section 5, Article XIV of the 1973 Constitution, thus:

Section 5. No franchise, certificate, or any other form of authorization for the operation of a
public utility shall be granted except to citizens of the Philippines or to corporations or
associations organized under the laws of the Philippines at least sixty per centum of the
capital of which is owned by such citizens, nor shall such franchise, certificate, or authorization
be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or
right be granted except under the condition that it shall be subject to amendment, alteration, or
repeal by the National Assembly when the public interest so requires. The State shall encourage
equity participation in public utilities by the general public. The participation of foreign investors in the
governing body of any public utility enterprise shall be limited to their proportionate share in the
capital thereof. (Emphasis supplied)

The foregoing provision in the 1973 Constitution reproduced Section 8, Article XIV of the 1935
Constitution, viz:

Section 8. No franchise, certificate, or any other form of authorization for the operation of a
public utility shall be granted except to citizens of the Philippines or to corporations or other
entities organized under the laws of the Philippines sixty per centum of the capital of which is
owned by citizens of the Philippines,nor shall such franchise, certificate, or authorization be
exclusive in character or for a longer period than fifty years. No franchise or right shall be granted to
any individual, firm, or corporation, except under the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the public interest so requires. (Emphasis supplied)

Father Joaquin G. Bernas, S.J., a leading member of the 1986 Constitutional Commission, reminds
us that the Filipinization provision in the 1987 Constitution is one of the products of the spirit of
nationalism which gripped the 1935 Constitutional Convention.25 The 1987 Constitution "provides for
the Filipinization of public utilities by requiring that any form of authorization for the operation of
public utilities should be granted only to ‘citizens of the Philippines or to corporations or associations
organized under the laws of the Philippines at least sixty per centum of whose capital is owned by
such citizens.’ The provision is [an express] recognition of the sensitive and vital position of
public utilities both in the national economy and for national security."26 The evident purpose
of the citizenship requirement is to prevent aliens from assuming control of public utilities, which may
be inimical to the national interest.27 This specific provision explicitly reserves to Filipino citizens
control of public utilities, pursuant to an overriding economic goal of the 1987 Constitution: to
"conserve and develop our patrimony"28 and ensure "a self-reliant and independent national
economy effectively controlled by Filipinos."29

Any citizen or juridical entity desiring to operate a public utility must therefore meet the minimum
nationality requirement prescribed in Section 11, Article XII of the Constitution. Hence, for a
corporation to be granted authority to operate a public utility, at least 60 percent of its "capital" must
be owned by Filipino citizens.
The crux of the controversy is the definition of the term "capital." Does the term "capital" in Section
11, Article XII of the Constitution refer to common shares or to the total outstanding capital stock
(combined total of common and non-voting preferred shares)?

Petitioner submits that the 40 percent foreign equity limitation in domestic public utilities refers only
to common shares because such shares are entitled to vote and it is through voting that control over
a corporation is exercised. Petitioner posits that the term "capital" in Section 11, Article XII of the
Constitution refers to "the ownership of common capital stock subscribed and outstanding, which
class of shares alone, under the corporate set-up of PLDT, can vote and elect members of the board
of directors." It is undisputed that PLDT’s non-voting preferred shares are held mostly by Filipino
citizens.30 This arose from Presidential Decree No. 217,31 issued on 16 June 1973 by then President
Ferdinand Marcos, requiring every applicant of a PLDT telephone line to subscribe to non-voting
preferred shares to pay for the investment cost of installing the telephone line.32

Petitioners-in-intervention basically reiterate petitioner’s arguments and adopt petitioner’s definition

of the term "capital."33 Petitioners-in-intervention allege that "the approximate foreign ownership of
common capital stock of PLDT x x x already amounts to at least 63.54% of the total outstanding
common stock," which means that foreigners exercise significant control over PLDT, patently
violating the 40 percent foreign equity limitation in public utilities prescribed by the Constitution.

Respondents, on the other hand, do not offer any definition of the term "capital" in Section 11, Article
XII of the Constitution. More importantly, private respondents Nazareno and Pangilinan of PLDT do
not dispute that more than 40 percent of the common shares of PLDT are held by foreigners.

In particular, respondent Nazareno’s Memorandum, consisting of 73 pages, harps mainly on the

procedural infirmities of the petition and the supposed violation of the due process rights of the
"affected foreign common shareholders." Respondent Nazareno does not deny petitioner’s allegation
of foreigners’ dominating the common shareholdings of PLDT. Nazareno stressed mainly that the
petition "seeks to divest foreign common shareholders purportedly exceeding 40% of the total
common shareholdings in PLDT of their ownership over their shares." Thus, "the foreign
natural and juridical PLDT shareholders must be impleaded in this suit so that they can be
heard."34 Essentially, Nazareno invokes denial of due process on behalf of the foreign common
shareholders.

While Nazareno does not introduce any definition of the term "capital," he states that "among the
factual assertions that need to be established to counter petitioner’s allegations is the
uniform interpretation by government agencies (such as the SEC), institutions and
corporations (such as the Philippine National Oil Company-Energy Development Corporation
or PNOC-EDC) of including both preferred shares and common shares in "controlling
interest" in view of testing compliance with the 40% constitutional limitation on foreign
ownership in public utilities."35

Similarly, respondent Manuel V. Pangilinan does not define the term "capital" in Section 11, Article
XII of the Constitution. Neither does he refute petitioner’s claim of foreigners holding more than 40
percent of PLDT’s common shares. Instead, respondent Pangilinan focuses on the procedural flaws
of the petition and the alleged violation of the due process rights of foreigners. Respondent
Pangilinan emphasizes in his Memorandum (1) the absence of this Court’s jurisdiction over the
petition; (2) petitioner’s lack of standing; (3) mootness of the petition; (4) non-availability of
declaratory relief; and (5) the denial of due process rights. Moreover, respondent Pangilinan alleges
that the issue should be whether "owners of shares in PLDT as well as owners of shares in
companies holding shares in PLDT may be required to relinquish their shares in PLDT and in those
companies without any law requiring them to surrender their shares and also without notice and
trial."

Respondent Pangilinan further asserts that "Section 11, [Article XII of the Constitution] imposes
no nationality requirement on the shareholders of the utility company as a condition for
keeping their shares in the utility company." According to him, "Section 11 does not authorize
taking one person’s property (the shareholder’s stock in the utility company) on the basis of another
party’s alleged failure to satisfy a requirement that is a condition only for that other party’s retention
of another piece of property (the utility company being at least 60% Filipino-owned to keep its
franchise)."36

The OSG, representing public respondents Secretary Margarito Teves, Undersecretary John P.
Sevilla, Commissioner Ricardo Abcede, and Chairman Fe Barin, is likewise silent on the definition of
the term "capital." In its Memorandum37 dated 24 September 2007, the OSG also limits its discussion
on the supposed procedural defects of the petition, i.e. lack of standing, lack of jurisdiction, non-
inclusion of interested parties, and lack of basis for injunction. The OSG does not present any
definition or interpretation of the term "capital" in Section 11, Article XII of the Constitution. The OSG
contends that "the petition actually partakes of a collateral attack on PLDT’s franchise as a public
utility," which in effect requires a "full-blown trial where all the parties in interest are given their day in
court."38

Respondent Francisco Ed Lim, impleaded as President and Chief Executive Officer of the Philippine
Stock Exchange (PSE), does not also define the term "capital" and seeks the dismissal of the
petition on the following grounds: (1) failure to state a cause of action against Lim; (2) the PSE
allegedly implemented its rules and required all listed companies, including PLDT, to make proper
and timely disclosures; and (3) the reliefs prayed for in the petition would adversely impact the stock
market.

In the earlier case of Fernandez v. Cojuangco, petitioner Fernandez who claimed to be a stockholder
of record of PLDT, contended that the term "capital" in the 1987 Constitution refers to shares entitled
to vote or the common shares. Fernandez explained thus:

The forty percent (40%) foreign equity limitation in public utilities prescribed by the Constitution
refers to ownership of shares of stock entitled to vote, i.e., common shares, considering that it is
through voting that control is being exercised. x x x

Obviously, the intent of the framers of the Constitution in imposing limitations and restrictions on fully
nationalized and partially nationalized activities is for Filipino nationals to be always in control of the
corporation undertaking said activities. Otherwise, if the Trial Court’s ruling upholding respondents’
arguments were to be given credence, it would be possible for the ownership structure of a public
utility corporation to be divided into one percent (1%) common stocks and ninety-nine percent (99%)
preferred stocks. Following the Trial Court’s ruling adopting respondents’ arguments, the common
shares can be owned entirely by foreigners thus creating an absurd situation wherein foreigners,
who are supposed to be minority shareholders, control the public utility corporation.

xxxx

Thus, the 40% foreign ownership limitation should be interpreted to apply to both the beneficial
ownership and the controlling interest.

xxxx
Clearly, therefore, the forty percent (40%) foreign equity limitation in public utilities prescribed by the
Constitution refers to ownership of shares of stock entitled to vote, i.e., common shares.
Furthermore, ownership of record of shares will not suffice but it must be shown that the legal and
beneficial ownership rests in the hands of Filipino citizens. Consequently, in the case of petitioner
PLDT, since it is already admitted that the voting interests of foreigners which would gain entry to
petitioner PLDT by the acquisition of SMART shares through the Questioned Transactions is
equivalent to 82.99%, and the nominee arrangements between the foreign principals and the Filipino
owners is likewise admitted, there is, therefore, a violation of Section 11, Article XII of the
Constitution.

Parenthetically, the Opinions dated February 15, 1988 and April 14, 1987 cited by the Trial Court to
support the proposition that the meaning of the word "capital" as used in Section 11, Article XII of the
Constitution allegedly refers to the sum total of the shares subscribed and paid-in by the shareholder
and it allegedly is immaterial how the stock is classified, whether as common or preferred, cannot
stand in the face of a clear legislative policy as stated in the FIA which took effect in 1991 or way
after said opinions were rendered, and as clarified by the above-quoted Amendments. In this regard,
suffice it to state that as between the law and an opinion rendered by an administrative agency, the
law indubitably prevails. Moreover, said Opinions are merely advisory and cannot prevail over the
clear intent of the framers of the Constitution.

In the same vein, the SEC’s construction of Section 11, Article XII of the Constitution is at best
merely advisory for it is the courts that finally determine what a law means.39

On the other hand, respondents therein, Antonio O. Cojuangco, Manuel V. Pangilinan, Carlos A.
Arellano, Helen Y. Dee, Magdangal B. Elma, Mariles Cacho-Romulo, Fr. Bienvenido F. Nebres, Ray
C. Espinosa, Napoleon L. Nazareno, Albert F. Del Rosario, and Orlando B. Vea, argued that the
term "capital" in Section 11, Article XII of the Constitution includes preferred shares since the
Constitution does not distinguish among classes of stock, thus:

16. The Constitution applies its foreign ownership limitation on the corporation’s "capital," without
distinction as to classes of shares. x x x

In this connection, the Corporation Code – which was already in force at the time the present (1987)
Constitution was drafted – defined outstanding capital stock as follows:

Section 137. Outstanding capital stock defined. – The term "outstanding capital stock", as used in
this Code, means the total shares of stock issued under binding subscription agreements to
subscribers or stockholders, whether or not fully or partially paid, except treasury shares.

Section 137 of the Corporation Code also does not distinguish between common and preferred
shares, nor exclude either class of shares, in determining the outstanding capital stock (the "capital")
of a corporation. Consequently, petitioner’s suggestion to reckon PLDT’s foreign equity only on the
basis of PLDT’s outstanding common shares is without legal basis. The language of the Constitution
should be understood in the sense it has in common use.

xxxx

17. But even assuming that resort to the proceedings of the Constitutional Commission is necessary,
there is nothing in the Record of the Constitutional Commission (Vol. III) – which petitioner
misleadingly cited in the Petition x x x – which supports petitioner’s view that only common shares
should form the basis for computing a public utility’s foreign equity.
xxxx

18. In addition, the SEC – the government agency primarily responsible for implementing the
Corporation Code, and which also has the responsibility of ensuring compliance with the
Constitution’s foreign equity restrictions as regards nationalized activities x x x – has categorically
ruled that both common and preferred shares are properly considered in determining outstanding
capital stock and the nationality composition thereof.40

We agree with petitioner and petitioners-in-intervention. The term "capital" in Section 11, Article XII
of the Constitution refers only to shares of stock entitled to vote in the election of directors, and thus
in the present case only to common shares,41 and not to the total outstanding capital stock
comprising both common and non-voting preferred shares.

The Corporation Code of the Philippines42 classifies shares as common or preferred, thus:

Sec. 6. Classification of shares. - The shares of stock of stock corporations may be divided into
classes or series of shares, or both, any of which classes or series of shares may have such rights,
privileges or restrictions as may be stated in the articles of incorporation: Provided, That no share
may be deprived of voting rights except those classified and issued as "preferred" or
"redeemable" shares, unless otherwise provided in this Code: Provided, further, That there
shall always be a class or series of shares which have complete voting rights. Any or all of the
shares or series of shares may have a par value or have no par value as may be provided for in the
articles of incorporation: Provided, however, That banks, trust companies, insurance companies,
public utilities, and building and loan associations shall not be permitted to issue no-par value shares
of stock.

Preferred shares of stock issued by any corporation may be given preference in the distribution of
the assets of the corporation in case of liquidation and in the distribution of dividends, or such other
preferences as may be stated in the articles of incorporation which are not violative of the provisions
of this Code: Provided, That preferred shares of stock may be issued only with a stated par value.
The Board of Directors, where authorized in the articles of incorporation, may fix the terms and
conditions of preferred shares of stock or any series thereof: Provided, That such terms and
conditions shall be effective upon the filing of a certificate thereof with the Securities and Exchange
Commission.

Shares of capital stock issued without par value shall be deemed fully paid and non-assessable and
the holder of such shares shall not be liable to the corporation or to its creditors in respect thereto:
Provided; That shares without par value may not be issued for a consideration less than the value of
five (₱5.00) pesos per share: Provided, further, That the entire consideration received by the
corporation for its no-par value shares shall be treated as capital and shall not be available for
distribution as dividends.

A corporation may, furthermore, classify its shares for the purpose of insuring compliance with
constitutional or legal requirements.

Except as otherwise provided in the articles of incorporation and stated in the certificate of stock,
each share shall be equal in all respects to every other share.

Where the articles of incorporation provide for non-voting shares in the cases allowed by this Code,
the holders of such shares shall nevertheless be entitled to vote on the following matters:

1. Amendment of the articles of incorporation;

 2. Adoption and amendment of by-laws;

3. Sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of
the corporate property;

4. Incurring, creating or increasing bonded indebtedness;

5. Increase or decrease of capital stock;

6. Merger or consolidation of the corporation with another corporation or other corporations;

7. Investment of corporate funds in another corporation or business in accordance with this

Code; and

8. Dissolution of the corporation.

Except as provided in the immediately preceding paragraph, the vote necessary to approve a
particular corporate act as provided in this Code shall be deemed to refer only to stocks with voting
rights.

Indisputably, one of the rights of a stockholder is the right to participate in the control or
management of the corporation.43 This is exercised through his vote in the election of directors
because it is the board of directors that controls or manages the corporation.44 In the absence of
provisions in the articles of incorporation denying voting rights to preferred shares, preferred shares
have the same voting rights as common shares. However, preferred shareholders are often
excluded from any control, that is, deprived of the right to vote in the election of directors and on
other matters, on the theory that the preferred shareholders are merely investors in the corporation
for income in the same manner as bondholders.45 In fact, under the Corporation Code only preferred
or redeemable shares can be deprived of the right to vote.46 Common shares cannot be deprived of
the right to vote in any corporate meeting, and any provision in the articles of incorporation restricting
the right of common shareholders to vote is invalid.47

Considering that common shares have voting rights which translate to control, as opposed to
preferred shares which usually have no voting rights, the term "capital" in Section 11, Article XII of
the Constitution refers only to common shares. However, if the preferred shares also have the right
to vote in the election of directors, then the term "capital" shall include such preferred shares
because the right to participate in the control or management of the corporation is exercised through
the right to vote in the election of directors. In short, the term "capital" in Section 11, Article XII of
the Constitution refers only to shares of stock that can vote in the election of directors.

This interpretation is consistent with the intent of the framers of the Constitution to place in the hands
of Filipino citizens the control and management of public utilities. As revealed in the deliberations of
the Constitutional Commission, "capital" refers to the voting stock or controlling interest of a
corporation, to wit:

MR. NOLLEDO. In Sections 3, 9 and 15, the Committee stated local or Filipino equity and foreign
equity; namely, 60-40 in Section 3, 60-40 in Section 9 and 2/3-1/3 in Section 15.

MR. VILLEGAS. That is right.

MR. NOLLEDO. In teaching law, we are always faced with this question: "Where do we base the
equity requirement, is it on the authorized capital stock, on the subscribed capital stock, or on the
paid-up capital stock of a corporation"? Will the Committee please enlighten me on this?

MR. VILLEGAS. We have just had a long discussion with the members of the team from the UP Law
Center who provided us a draft. The phrase that is contained here which we adopted from the
UP draft is "60 percent of voting stock."

MR. NOLLEDO. That must be based on the subscribed capital stock, because unless declared
delinquent, unpaid capital stock shall be entitled to vote.

MR. VILLEGAS. That is right.

MR. NOLLEDO. Thank you.

With respect to an investment by one corporation in another corporation, say, a corporation with 60-
40 percent equity invests in another corporation which is permitted by the Corporation Code, does
the Committee adopt the grandfather rule?

MR. VILLEGAS. Yes, that is the understanding of the Committee.

MR. NOLLEDO. Therefore, we need additional Filipino capital?

MR. VILLEGAS. Yes.48

xxxx

MR. AZCUNA. May I be clarified as to that portion that was accepted by the Committee.

MR. VILLEGAS. The portion accepted by the Committee is the deletion of the phrase "voting stock
or controlling interest."

MR. AZCUNA. Hence, without the Davide amendment, the committee report would read:
"corporations or associations at least sixty percent of whose CAPITAL is owned by such citizens."

MR. VILLEGAS. Yes.

MR. AZCUNA. So if the Davide amendment is lost, we are stuck with 60 percent of the capital to be
owned by citizens.

MR. VILLEGAS. That is right.

MR. AZCUNA. But the control can be with the foreigners even if they are the minority. Let us
say 40 percent of the capital is owned by them, but it is the voting capital, whereas, the
Filipinos own the nonvoting shares. So we can have a situation where the corporation is
controlled by foreigners despite being the minority because they have the voting capital. That
is the anomaly that would result here.
MR. BENGZON. No, the reason we eliminated the word "stock" as stated in the 1973 and 1935
Constitutions is that according to Commissioner Rodrigo, there are associations that do not
have stocks. That is why we say "CAPITAL."

MR. AZCUNA. We should not eliminate the phrase "controlling interest."

MR. BENGZON. In the case of stock corporations, it is assumed.49 (Emphasis supplied)

Thus, 60 percent of the "capital" assumes, or should result in, "controlling interest" in the
corporation. Reinforcing this interpretation of the term "capital," as referring to controlling interest or
shares entitled to vote, is the definition of a "Philippine national" in the Foreign Investments Act of
1991,50 to wit:

SEC. 3. Definitions. - As used in this Act:

a. The term "Philippine national" shall mean a citizen of the Philippines; or a domestic partnership or
association wholly owned by citizens of the Philippines; or a corporation organized under the laws
of the Philippines of which at least sixty percent (60%) of the capital stock
outstanding and entitled to vote is owned and held by citizens of the Philippines; or a
corporation organized abroad and registered as doing business in the Philippines under the
Corporation Code of which one hundred percent (100%) of the capital stock outstanding and entitled
to vote is wholly owned by Filipinos or a trustee of funds for pension or other employee retirement or
separation benefits, where the trustee is a Philippine national and at least sixty percent (60%) of the
fund will accrue to the benefit of Philippine nationals: Provided, That where a corporation and its
non-Filipino stockholders own stocks in a Securities and Exchange Commission (SEC) registered
enterprise, at least sixty percent (60%) of the capital stock outstanding and entitled to vote of each of
both corporations must be owned and held by citizens of the Philippines and at least sixty percent
(60%) of the members of the Board of Directors of each of both corporations must be citizens of the
Philippines, in order that the corporation, shall be considered a "Philippine national." (Emphasis
supplied)

In explaining the definition of a "Philippine national," the Implementing Rules and Regulations of the
Foreign Investments Act of 1991 provide:

b. "Philippine national" shall mean a citizen of the Philippines or a domestic partnership or

association wholly owned by the citizens of the Philippines; or a corporation organized under the
laws of the Philippines of which at least sixty percent [60%] of the capital stock outstanding
and entitled to vote is owned and held by citizens of the Philippines; or a trustee of funds for
pension or other employee retirement or separation benefits, where the trustee is a Philippine
national and at least sixty percent [60%] of the fund will accrue to the benefit of the Philippine
nationals; Provided, that where a corporation its non-Filipino stockholders own stocks in a Securities
and Exchange Commission [SEC] registered enterprise, at least sixty percent [60%] of the capital
stock outstanding and entitled to vote of both corporations must be owned and held by citizens of the
Philippines and at least sixty percent [60%] of the members of the Board of Directors of each of both
corporation must be citizens of the Philippines, in order that the corporation shall be considered a
Philippine national. The control test shall be applied for this purpose.

Compliance with the required Filipino ownership of a corporation shall be determined on the
basis of outstanding capital stock whether fully paid or not, but only such stocks which are
generally entitled to vote are considered.
For stocks to be deemed owned and held by Philippine citizens or Philippine nationals, mere
legal title is not enough to meet the required Filipino equity. Full beneficial ownership of the
stocks, coupled with appropriate voting rights is essential. Thus, stocks, the voting rights of
which have been assigned or transferred to aliens cannot be considered held by Philippine
citizens or Philippine nationals.

Individuals or juridical entities not meeting the aforementioned qualifications are considered
as non-Philippine nationals. (Emphasis supplied)

Mere legal title is insufficient to meet the 60 percent Filipino-owned "capital" required in the
Constitution. Full beneficial ownership of 60 percent of the outstanding capital stock, coupled with 60
percent of the voting rights, is required. The legal and beneficial ownership of 60 percent of the
outstanding capital stock must rest in the hands of Filipino nationals in accordance with the
constitutional mandate. Otherwise, the corporation is "considered as non-Philippine national[s]."

Under Section 10, Article XII of the Constitution, Congress may "reserve to citizens of the Philippines
or to corporations or associations at least sixty per centum of whose capital is owned by such
citizens, or such higher percentage as Congress may prescribe, certain areas of investments." Thus,
in numerous laws Congress has reserved certain areas of investments to Filipino citizens or to
corporations at least sixty percent of the "capital" of which is owned by Filipino citizens. Some of
these laws are: (1) Regulation of Award of Government Contracts or R.A. No. 5183; (2) Philippine
Inventors Incentives Act or R.A. No. 3850; (3) Magna Carta for Micro, Small and Medium Enterprises
or R.A. No. 6977; (4) Philippine Overseas Shipping Development Act or R.A. No. 7471; (5) Domestic
Shipping Development Act of 2004 or R.A. No. 9295; (6) Philippine Technology Transfer Act of 2009
or R.A. No. 10055; and (7) Ship Mortgage Decree or P.D. No. 1521. Hence, the term "capital" in
Section 11, Article XII of the Constitution is also used in the same context in numerous
laws reserving certain areas of investments to Filipino citizens.

To construe broadly the term "capital" as the total outstanding capital stock, including both common
and non-votingpreferred shares, grossly contravenes the intent and letter of the Constitution that the
"State shall develop a self-reliant and independent national economy effectively controlled by
Filipinos." A broad definition unjustifiably disregards who owns the all-important voting stock, which
necessarily equates to control of the public utility.

We shall illustrate the glaring anomaly in giving a broad definition to the term "capital." Let us
assume that a corporation has 100 common shares owned by foreigners and 1,000,000 non-voting
preferred shares owned by Filipinos, with both classes of share having a par value of one peso
(₱1.00) per share. Under the broad definition of the term "capital," such corporation would be
considered compliant with the 40 percent constitutional limit on foreign equity of public utilities since
the overwhelming majority, or more than 99.999 percent, of the total outstanding capital stock is
Filipino owned. This is obviously absurd.

In the example given, only the foreigners holding the common shares have voting rights in the
election of directors, even if they hold only 100 shares. The foreigners, with a minuscule equity of
less than 0.001 percent, exercise control over the public utility. On the other hand, the Filipinos,
holding more than 99.999 percent of the equity, cannot vote in the election of directors and hence,
have no control over the public utility. This starkly circumvents the intent of the framers of the
Constitution, as well as the clear language of the Constitution, to place the control of public utilities in
the hands of Filipinos. It also renders illusory the State policy of an independent national
economy effectively controlled by Filipinos.
The example given is not theoretical but can be found in the real world, and in fact exists in the
present case.

Holders of PLDT preferred shares are explicitly denied of the right to vote in the election of directors.
PLDT’s Articles of Incorporation expressly state that "the holders of Serial Preferred Stock shall
not be entitled to vote at any meeting of the stockholders for the election of directors or for
any other purpose or otherwise participate in any action taken by the corporation or its
stockholders, or to receive notice of any meeting of stockholders."51

On the other hand, holders of common shares are granted the exclusive right to vote in the election
of directors. PLDT’s Articles of Incorporation52 state that "each holder of Common Capital Stock shall
have one vote in respect of each share of such stock held by him on all matters voted upon by the
stockholders, and the holders of Common Capital Stock shall have the exclusive right to vote
for the election of directors and for all other purposes."53

In short, only holders of common shares can vote in the election of directors, meaning only common
shareholders exercise control over PLDT. Conversely, holders of preferred shares, who have no
voting rights in the election of directors, do not have any control over PLDT. In fact, under PLDT’s
Articles of Incorporation, holders of common shares have voting rights for all purposes, while holders
of preferred shares have no voting right for any purpose whatsoever.

It must be stressed, and respondents do not dispute, that foreigners hold a majority of the
common shares of PLDT. In fact, based on PLDT’s 2010 General Information Sheet (GIS),54 which is
a document required to be submitted annually to the Securities and Exchange
Commission,55 foreigners hold 120,046,690 common shares of PLDT whereas Filipinos hold only
66,750,622 common shares.56 In other words, foreigners hold 64.27% of the total number of PLDT’s
common shares, while Filipinos hold only 35.73%. Since holding a majority of the common shares
equates to control, it is clear that foreigners exercise control over PLDT. Such amount of control
unmistakably exceeds the allowable 40 percent limit on foreign ownership of public utilities expressly
mandated in Section 11, Article XII of the Constitution.

Moreover, the Dividend Declarations of PLDT for 2009,57 as submitted to the SEC, shows that per
share the SIP58preferred shares earn a pittance in dividends compared to the common shares. PLDT
declared dividends for the common shares at ₱70.00 per share, while the declared dividends for the
preferred shares amounted to a measly ₱1.00 per share.59 So the preferred shares not only cannot
vote in the election of directors, they also have very little and obviously negligible dividend earning
capacity compared to common shares.

As shown in PLDT’s 2010 GIS,60 as submitted to the SEC, the par value of PLDT common shares is
₱5.00 per share, whereas the par value of preferred shares is ₱10.00 per share. In other words,
preferred shares have twice the par value of common shares but cannot elect directors and have
only 1/70 of the dividends of common shares. Moreover, 99.44% of the preferred shares are owned
by Filipinos while foreigners own only a minuscule 0.56% of the preferred shares.61 Worse, preferred
shares constitute 77.85% of the authorized capital stock of PLDT while common shares constitute
only 22.15%.62 This undeniably shows that beneficial interest in PLDT is not with the non-voting
preferred shares but with the common shares, blatantly violating the constitutional requirement of 60
percent Filipino control and Filipino beneficial ownership in a public utility.

The legal and beneficial ownership of 60 percent of the outstanding capital stock must rest in the
hands of Filipinos in accordance with the constitutional mandate. Full beneficial ownership of 60
percent of the outstanding capital stock, coupled with 60 percent of the voting rights, is
constitutionally required for the State’s grant of authority to operate a public utility. The undisputed
fact that the PLDT preferred shares, 99.44% owned by Filipinos, are non-voting and earn only 1/70
of the dividends that PLDT common shares earn, grossly violates the constitutional requirement of
60 percent Filipino control and Filipino beneficial ownership of a public utility.

In short, Filipinos hold less than 60 percent of the voting stock, and earn less than 60 percent
of the dividends, of PLDT. This directly contravenes the express command in Section 11, Article
XII of the Constitution that "[n]o franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to x x x corporations x x x organized under the
laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens x x
x."

To repeat, (1) foreigners own 64.27% of the common shares of PLDT, which class of shares
exercises the sole right to vote in the election of directors, and thus exercise control over PLDT; (2)
Filipinos own only 35.73% of PLDT’s common shares, constituting a minority of the voting stock, and
thus do not exercise control over PLDT; (3) preferred shares, 99.44% owned by Filipinos, have no
voting rights; (4) preferred shares earn only 1/70 of the dividends that common shares earn;63 (5)
preferred shares have twice the par value of common shares; and (6) preferred shares constitute
77.85% of the authorized capital stock of PLDT and common shares only 22.15%. This kind of
ownership and control of a public utility is a mockery of the Constitution.

Incidentally, the fact that PLDT common shares with a par value of ₱5.00 have a current stock
market value of ₱2,328.00 per share,64 while PLDT preferred shares with a par value of ₱10.00 per
share have a current stock market value ranging from only ₱10.92 to ₱11.06 per share,65 is a glaring
confirmation by the market that control and beneficial ownership of PLDT rest with the common
shares, not with the preferred shares.

Indisputably, construing the term "capital" in Section 11, Article XII of the Constitution to include both
voting and non-voting shares will result in the abject surrender of our telecommunications industry to
foreigners, amounting to a clear abdication of the State’s constitutional duty to limit control of public
utilities to Filipino citizens. Such an interpretation certainly runs counter to the constitutional
provision reserving certain areas of investment to Filipino citizens, such as the exploitation of natural
resources as well as the ownership of land, educational institutions and advertising businesses. The
Court should never open to foreign control what the Constitution has expressly reserved to Filipinos
for that would be a betrayal of the Constitution and of the national interest. The Court must perform
its solemn duty to defend and uphold the intent and letter of the Constitution to ensure, in the words
of the Constitution, "a self-reliant and independent national economy effectively controlled by
Filipinos."

Section 11, Article XII of the Constitution, like other provisions of the Constitution expressly reserving
to Filipinos specific areas of investment, such as the development of natural resources and
ownership of land, educational institutions and advertising business, is self-executing. There is no
need for legislation to implement these self-executing provisions of the Constitution. The rationale
why these constitutional provisions are self-executing was explained in Manila Prince Hotel v.
GSIS,66 thus:

x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a

constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate of the
fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been,
that —
. . . in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution
should be considered self-executing, as a contrary rule would give the legislature discretion
to determine when, or whether, they shall be effective. These provisions would be subordinated
to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to
pass the needed implementing statute. (Emphasis supplied)

In Manila Prince Hotel, even the Dissenting Opinion of then Associate Justice Reynato S. Puno, later
Chief Justice, agreed that constitutional provisions are presumed to be self-executing. Justice Puno
stated:

Courts as a rule consider the provisions of the Constitution as self-executing, rather than as
requiring future legislation for their enforcement. The reason is not difficult to discern. For if they are
not treated as self-executing, the mandate of the fundamental law ratified by the sovereign
people can be easily ignored and nullified by Congress. Suffused with wisdom of the ages is
the unyielding rule that legislative actions may give breath to constitutional rights but
congressional inaction should not suffocate them.

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, the rights of a person under custodial investigation, the rights of an accused, and the
privilege against self-incrimination. It is recognized that legislation is unnecessary to enable courts to
effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the
protection of property. The same treatment is accorded to constitutional provisions forbidding the
taking or damaging of property for public use without just compensation. (Emphasis supplied)

Thus, in numerous cases,67 this Court, even in the absence of implementing legislation, applied
directly the provisions of the 1935, 1973 and 1987 Constitutions limiting land ownership to Filipinos.
In Soriano v. Ong Hoo,68this Court ruled:

x x x As the Constitution is silent as to the effects or consequences of a sale by a citizen of his land
to an alien, and as both the citizen and the alien have violated the law, none of them should have a
recourse against the other, and it should only be the State that should be allowed to intervene and
determine what is to be done with the property subject of the violation. We have said that what the
State should do or could do in such matters is a matter of public policy, entirely beyond the scope of
judicial authority. (Dinglasan, et al. vs. Lee Bun Ting, et al., 6 G. R. No. L-5996, June 27,
1956.) While the legislature has not definitely decided what policy should be followed in
cases of violations against the constitutional prohibition, courts of justice cannot go beyond
by declaring the disposition to be null and void as violative of the Constitution. x x x
(Emphasis supplied)

To treat Section 11, Article XII of the Constitution as not self-executing would mean that since the
1935 Constitution, or over the last 75 years, not one of the constitutional provisions expressly
reserving specific areas of investments to corporations, at least 60 percent of the "capital" of which is
owned by Filipinos, was enforceable. In short, the framers of the 1935, 1973 and 1987 Constitutions
miserably failed to effectively reserve to Filipinos specific areas of investment, like the operation by
corporations of public utilities, the exploitation by corporations of mineral resources, the ownership
by corporations of real estate, and the ownership of educational institutions. All the legislatures that
convened since 1935 also miserably failed to enact legislations to implement these vital
constitutional provisions that determine who will effectively control the national economy, Filipinos or
foreigners. This Court cannot allow such an absurd interpretation of the Constitution.
This Court has held that the SEC "has both regulatory and adjudicative functions."69 Under its
regulatory functions, the SEC can be compelled by mandamus to perform its statutory duty when it
unlawfully neglects to perform the same. Under its adjudicative or quasi-judicial functions, the SEC
can be also be compelled by mandamus to hear and decide a possible violation of any law it
administers or enforces when it is mandated by law to investigate such violation. 1aw phi1

Under Section 17(4)70 of the Corporation Code, the SEC has the regulatory function to reject or
disapprove the Articles of Incorporation of any corporation where "the required percentage of
ownership of the capital stock to be owned by citizens of the Philippines has not been
complied with as required by existing laws or the Constitution." Thus, the SEC is the
government agency tasked with the statutory duty to enforce the nationality requirement prescribed
in Section 11, Article XII of the Constitution on the ownership of public utilities. This Court, in a
petition for declaratory relief that is treated as a petition for mandamus as in the present case, can
direct the SEC to perform its statutory duty under the law, a duty that the SEC has apparently
unlawfully neglected to do based on the 2010 GIS that respondent PLDT submitted to the SEC.

Under Section 5(m) of the Securities Regulation Code,71 the SEC is vested with the "power and
function" to "suspend or revoke, after proper notice and hearing, the franchise or certificate of
registration of corporations, partnerships or associations, upon any of the grounds provided
by law." The SEC is mandated under Section 5(d) of the same Code with the "power and function"
to "investigate x x x the activities of persons to ensure compliance" with the laws and
regulations that SEC administers or enforces. The GIS that all corporations are required to submit to
SEC annually should put the SEC on guard against violations of the nationality requirement
prescribed in the Constitution and existing laws. This Court can compel the SEC, in a petition for
declaratory relief that is treated as a petition for mandamus as in the present case, to hear and
decide a possible violation of Section 11, Article XII of the Constitution in view of the ownership
structure of PLDT’s voting shares, as admitted by respondents and as stated in PLDT’s 2010 GIS
that PLDT submitted to SEC.

WHEREFORE, we PARTLY GRANT the petition and rule that the term "capital" in Section 11,
Article XII of the 1987 Constitution refers only to shares of stock entitled to vote in the election of
directors, and thus in the present case only to common shares, and not to the total outstanding
capital stock (common and non-voting preferred shares). Respondent Chairperson of the Securities
and Exchange Commission is DIRECTED to apply this definition of the term "capital" in determining
the extent of allowable foreign ownership in respondent Philippine Long Distance Telephone
Company, and if there is a violation of Section 11, Article XII of the Constitution, to impose the
appropriate sanctions under the law.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice
 ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE C. MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

RENATO C. CORONA
Chief Justice

Footnotes

1 Rollo (Vol. I) , pp. 15-103, (Vol. II), pp. 762-768.

2 See Cojuangco v. Sandiganbayan, G.R. No. 183278, 24 April 2009, 586 SCRA 790.

3 Section 11, Article XII of the 1987 Constitution provides:

ARTICLE XII
NATIONAL ECONOMY AND PATRIMONY

xxxx

Section 11. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines or to
corporations or associations organized under the laws of the Philippines, at least
sixty per centum of whose capital is owned by such citizens; nor shall such franchise,
certificate, or authorization be exclusive in character or for a longer period than fifty
years. Neither shall any such franchise or right be granted except under the condition
that it shall be subject to amendment, alteration, or repeal by the Congress when the
common good so requires. The State shall encourage equity participation in public
utilities by the general public. The participation of foreign investors in the governing
 body of any public utility enterprise shall be limited to their proportionate share in its
capital, and all the executive and managing officers of such corporation or
association must be citizens of the Philippines.

4 Yuchengco v. Sandiganbayan, G.R. No. 149802, 20 January 2006, 479 SCRA 1.

5 Rollo, (Vol. II), p. 806.

6 Rollo (Vol. I), p. 23.

7 Id. at 23-24, 26.

8 Id. at 41.

9 Id.

10Governed by Rule 63 of the Rules of Court. Section 1, Rule 63 of the Rules of Court
states:

RULE 63

Declaratory Relief and Similar Remedies

Section 1. Who may file petition. — Any person interested under a deed, will,
contract or other written instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or any other governmental regulation may,
before breach or violation thereof bring an action in the appropriate Regional Trial
Court to determine any question of construction or validity arising, and for a
declaration of his rights or duties, thereunder. (Bar Matter No. 803, 17 February
1998)

11 Section 2, Rule 65 of the Rules of Court provides:

SEC. 2. Petition for prohibition. – When the proceedings of any tribunal, corporation,
board, officer, or person, whether exercising judicial, quasi-judicial or ministerial
functions, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the respondent to
desist from further proceedings in the action or matter specified therein, or otherwise
granting such incidental relief as law and justice may require.

xxxx

12 Section 3, Rule 65 of the Rules of Court states:

SEC. 3. Petition for mandamus. – When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is
 entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some other time to be specified by
the court, to do the act required to be done to protect the rights of the petitioner and
to pay the damages sustained by the petitioner by reason of the wrongful acts of the
respondent.

xxxx

13 343 Phil. 539 (1997).

209 Phil. 1 (1983), citing Nacionalista Party v. Angelo Bautista, 85 Phil. 101, and Aquino v.
14

Commission on Elections, 62 SCRA 275.

15 Supra note 13.

16Adverted to in respondent Nazareno’s Memorandum dated 27 September 2007. Rollo, p.

929. Nazareno stated: "In fact, in Fernandez v. Cojuangco, which raised markedly similar
issues, the Honorable Court refused to entertain the Petition directly filed with it and
dismissed the same for violating the principle of hierarchy of courts."

17 In a Resolution dated 9 June 2003.

18 Section 19, Article II, Constitution.

19Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. The exploration, development, and
utilization of natural resources shall be under the full control and supervision of the
State. The State may directly undertake such activities, or it may enter into co-
production, joint venture, or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose capital is owned by
such citizens. Such agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such terms and conditions as may
be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial
uses other than the development of water power, beneficial use may be the measure and
limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial
sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by

Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fish- workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils according to the general
 terms and conditions provided by law, based on real contributions to the economic
growth and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance
with this provision, within thirty days from its execution.

20Section 7. Save in cases of hereditary succession, no private lands shall be transferred or

conveyed except to individuals, corporations, or associations qualified to acquire or
hold lands of the public domain.

21Section 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will encourage the formation and
operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.

22Section 4(2), Article XIV of the 1987 Constitution provides: "Educational institutions,
other than those established by religious groups and mission boards, shall be owned
solely by citizens of the Philippines or corporations or associations at least sixty per
centum of the capital of which is owned by such citizens. The Congress may, however,
require increased Filipino equity participation in all educational institutions.

The control and administration of educational institutions shall be vested in citizens of

the Philippines.

x x x x"

23Section 11(2), Article XVI of the 1987 Constitution provides: "The advertising industry is
impressed with public interest, and shall be regulated by law for the protection of consumers
and the promotion of the general welfare.

Only Filipino citizens or corporations or associations at least seventy per

centum of the capital of which is owned by such citizens shall be allowed to
engage in the advertising industry.

The participation of foreign investors in the governing body of entities in such

industry shall be limited to their proportionate share in the capital thereof, and all the
executive and managing officers of such entities must be citizens of the Philippines.

G.R. No. 130716, 9 December 1998, 299 SCRA 744 cited in Chavez v. Public Estates
24

Authority, 433 Phil. 506 (2002). See also David v. Macapagal-Arroyo, G.R. No. 171396, 3
May 2006, 489 SCRA 160; Santiago v. Commission on Elections, G.R. No. 127325, 19
March 1997, 270 SCRA 106; Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5 May
1994, 232 SCRA 110 (1994).

Bernas, The Constitution of the Republic of the Philippines, p. 452, citing Smith, Bell and
25

Co. v. Natividad, 40 Phil. 136, 148 (1919); Luzon Stevedoring Corporation v. Anti-Dummy
Board, 46 SCRA 474, 490 (1972).

26 Id.

De Leon, Hector, Philippine Constitutional Law (Principles and Cases), Volume 2, 1999
27

Ed., p. 848.

28Preamble, 1987 Constitution; De Leon, Hector, Philippine Constitutional Law (Principles

and Cases), Volume 2, 1999 Ed., p. 788.

29 Section 19, Article II, Constitution.

30http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_%28as%20of %207.2.
10%29_final.pdf

ESTABLISHING BASIC POLICIES FOR THE TELEPHONE INDUSTRY, AMENDING FOR

31

THE PURPOSE THE PERTINENT PROVISIONS OF COMMONWEALTH ACT NO. 146, AS

AMENDED, OTHERWISE KNOWN AS THE PUBLIC SERVICE ACT, AS AMENDED, AND
ALL INCONSISTENT LEGISLATIVE AND MUNICIPAL FRANCHISE OF THE PHILIPPINE
LONG DISTANCE TELEPHONE COMPANY UNDER ACT NO. 3436, AS AMENDED, AND
ALL INCONSISTENT LEGISLATIVE AND MUNICIPAL FRANCHISES INCLUDING OTHER
EXISTING LAWS.

32Upon approval by the National Telecommunications Commission, this mandatory

requirement to subscribe to non-voting preferred shares was made optional starting 22 April
2003. See PLDT 20- F 2005 filing with the United States Securities and Exchange
Commission
at http://www.wikinvest.com/stock/Philippine_Long_Distance_Telephone Company_(PHI)/ Fil
ing/20-F/2—5/F2923101. See also Philippine Consumers Foundation, Inc. v. NTC and
PLDT, G.R. No. L-63318, 18 April 1984, on the origin and rationale of the SIP.

33 Rollo (Vol. I), pp. 414-451.

34 Rollo (Vol. II), p. 991.

35 Id. at 951.

36 Id. at 838.

37 Id. at 898-923.

38 Rollo (Vol. II), p. 913.

39 Rollo (G.R. No. 157360), pp. 55-62.

40 Rollo (G.R. No. 157360), pp. 1577-1583.

41 In PLDT’s case, the preferred stock is non-voting, except as specifically provided by law.

(http://www.pldt.com.ph/investor/Documents/a2d211230ec3436eab66b41d3d107cfc
4Q2004FSwithopinion.pdf)

42 Batas Pambansa Blg. 68.

43 As stated in the Corporation Code.

44 See http://www.congress.gov.ph/download/researches/rrb_0303_5.pdf

45 See http://www.congress.gov.ph/download/researches/rrb_0303_5.pdf

46 Section 6, BP Blg. 68 or The Corporation Code.

Agpalo, Ruben E., Comments on the Corporation Code of the Philippines, 2001 Second
47

Edition, p. 36.

48 Record of the Constitutional Commission, Vol. III, pp. 255-256.

49 Id. at 360.

Republic Act No. 7042 entitled "AN ACT TO PROMOTE FOREIGN INVESTMENTS,
50

PRESCRIBE THE PROCEDURES FOR REGISTERING ENTERPRISES DOING

BUSINESS IN THE PHILIPPINES AND FOR OTHER PURPOSES."

51 Rollo (G.R. No. 157360), Vol. I, p. 348.

It must be noted that under PLDT’s Articles of Incorporation, the PLDT Board of
Directors is expressly authorized to determine, among others, with respect to each
series of Serial Preferred Stock:

xxxx

(b) the dividend rate, if any, on the shares of such series (which, if and to the
extent the Board of Directors, in its sole discretion, shall deem appropriate
under the circumstances, shall be fixed considering the rate of return on
similar securities at the time of issuance of such shares), the terms and
conditions upon which and the periods with respect to which dividends shall
be payable, whether and upon what conditions such dividends shall be
cumulative and, if cumulative, the date or dates from which dividends shall
accumulate;

c. whether or not the shares of such series shall be redeemable, the

limitations with respect to such redemption, the time or times when and the
manner in which such shares shall be redeemable (including the manner of
selecting shares of such series for redemption if less than all shares are to be
redeemed) and the price or prices at which such shares shall be redeemable,
which may not be less than (i) the par value thereof plus (ii) accrued and
unpaid dividends thereon, nor more than (i) 110% of the par value thereof
plus (ii) accrued and unpaid dividends thereon;
 d. whether or not the shares of such series shall be subject to the operation
of a purchase, retirement or sinking fund, and, if so, whether and upon what
conditions such purchase, retirement or sinking fund shall be cumulative or
non-cumulative, the extent to which and the manner in which such fund shall
be applied to the purchase or redemption of the shares of such series for
retirement or to other corporate purposes and the terms and provisions
relative to the operation thereof;

(e) the rights to which the holders of shares of such series shall be entitled
upon the voluntary or involuntary liquidation, dissolution, distribution of assets
or winding up of the corporation, which rights may vary depending on
whether such liquidation, dissolution, distribution or winding up is voluntary or
involuntary, and if voluntary, may vary at different dates, provided, however,
that the amount which the holders of shares of such series shall be entitled to
receive in the event of any voluntary or involuntary liquidation, dissolution,
distribution of assets or winding up of the corporation

Further, "the holders of Serial Preferred Stock shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds legally available therefore,
preferential cash dividends at the rate, under the terms and conditions, for the
periods and on the dates fixed by the resolution or resolutions of the Board of
Directors, x x x and no more, before any dividends on the Common Capital Stock
(other than dividends payable in Common Capital Stock) shall be paid or set apart for
payment with respect to the same dividend period. All shares of Preferred Stock of all
series shall be of equal rank, preference and priority as to dividends irrespective of
whether or not the rates of dividends to which the same shall be entitled shall be the
same and, when the stated dividends are not paid in full, the shares of all series of
Serial Preferred Stock shall share ratably in the payment of dividends including
accumulations, if any, in accordance with the sums which would be payable on such
shares if all dividends were declared and paid in full, provided, however, that any two
or more series of Serial Preferred Stock may differ from each other as to the
existence and extent of the right to cumulative dividends as aforesaid."

52Rollo (G.R. No. 157360), Vol. I, p. 339-355. Adopted on 21 November 1995 and approved
on 18 February 1997.

53 The other rights, limitations and preferences of common capital stock are as follows:

1. After the requirements with respect to preferential dividends on the Serial

Preferred Stock shall have been met and after the corporation shall have complied
with all the requirements, if any, with respect to the setting aside of sums as
purchase, retirement or sinking funds, then and not otherwise the holders of the
Common Capital Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors out of funds legally available
therefor.

2. After distribution in full of the preferential amounts to be distributed to the holders

of Serial Preferred Stock in the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the corporation, the holders of the
Common Capital Stock shall be entitled to receive all the remaining assets of the
corporation of whatever kind available for distribution to stockholders ratably in
 proportion to the number of shares of the Common Capital Stock held by them,
respectively.

xxxx

4. The ownership of shares of Common Capital Stock shall not entitle the owner
thereof to any right (other than such right, if any, as the Board of Directors in its
discretion may from time to time grant) to subscribe for or to purchase or to have
offered to him for subscription or purchase any shares of any class of preferred stock
of the corporation.

54http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_%28as%20of %207.2.
10%29_final.pdf

55 http://www.sec.gov.ph/index.htm?GIS_Download

56http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_%28as%20of %207.2.
10%29_final.pdf

57http://www.pldt.com.ph/investor/Documents/2009%20Dividend%20Declarations_Update%
2012082009.pdf. See also http://www.pldt.com.ph/investor/Documents/disclosures_03-
01- 2011.pdf

58 Subscription Investment Plan. See PD No. 217.

59This is the result of the preferred shares being denominated 10% preferred, which means
each preferred share will earn an annual dividend equal to 10% of its par value of ₱10, which
amounts to ₱1. Once this dividend is paid to holders of preferred shares, the rest of the
retained earnings can be paid as dividends to the holders of common shares.
See http://www.pldt.com.ph/investor/Documents/2009%20Dividend%20Declarations_Update
%2012082009.pdf

In 2011, PLDT declared dividends for the common shares at ₱78.00 per share.
(http://www.pldt.com.ph/investor/Documents/disclosures_03-01-2011.pdf)

60http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_(as%20of %207.2.10)
_final.pdf

61Id. Based on PLDT’s 2010 GIS, the paid-up capital of PLDT (as of Record Date – 12 April
2010) consists of the following:

Filipino (preferred): 403,410,355

Foreigners (preferred): 2,287,207

Total: 405,697,562

62Based on par value, as stated in PLDT’s 2010 GIS sbumitted to the SEC. See
http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_%28as%20of

%207.2.10%29_final.pdf (accessed 23 May 2011).

 Authorized capital stock of PLDT is broken down as follows:

Common shares: 234,000,000

Preferred shares: 822,500,000

Total: 1,056,000,000

63 For the year 2009.

64 http://www.pse.com.ph/ (accessed 31 May 2011)

http://www.pse.com.ph/html/Quotations/2011/stockQuotes_05272011.pdf (accessed 27
65

May 2011)

66 335 Phil. 82 (1997).

67Krivenko v. Register of Deeds, 79 Phil. 461 (1947); Rellosa v. Gaw Chee Hun, 93 Phil. 827
(1953); Vasquez v. Li Seng Giap, 96 Phil. 447 (1955); Soriano v. Ong Hoo, 103 Phil. 829
(1958); Philippine Banking Corporation v. Lui She, 128 Phil. 53 (1967); Frenzel v. Catito, 453
Phil. 885 (2003).

68 Id.

Securities and Exchange Commission v. Court of Appeals, et al., 316 Phil. 903 (1995). The
69

Court ruled in this case:

The Securities and Exchange Commission ("SEC") has both regulatory and
adjudicative functions.

Under its regulatory responsibilities, the SEC may pass upon applications for,
or may suspend or revoke (after due notice and hearing), certificates of
registration of corporations, partnerships and associations (excluding
cooperatives, homeowners’ associations, and labor unions); compel legal and
regulatory compliances; conduct inspections; and impose fines or other penalties for
violations of the Revised Securities Act, as well as implementing rules and directives
of the SEC, such as may be warranted.

Relative to its adjudicative authority, the SEC has original and exclusive jurisdiction
to hear and decide controversies and cases involving -

a. Intra-corporate and partnership relations between or among the corporation,

officers and stockholders and partners, including their elections or appointments;

b. State and corporate affairs in relation to the legal existence of corporations,

partnerships and associations or to their franchise; and

c. Investors and corporate affairs particularly in respect of devices and schemes,

such as fraudulent practices, employed by directors, officers, business associates,
and/or other stockholders, partners, or members of registered firms; x x x
 x x x x (Emphasis supplied)

70SEC. 17. Grounds when articles of incorporation or amendment may be rejected or

disapproved. – The Securities and Exchange Commission may reject the articles of
incorporation or disapprove any amendment thereto if the same is not in compliance with the
requirements of this Code: Provided, That the Commission shall give the incorporators a
reasonable time within which to correct or modify the objectionable portions of the
articles or amendment. The following are grounds for such rejection or disapproval:

xxx

(4) That the required percentage of ownership of the capital stock to be owned
by citizens of the Philippines has not been complied with as required by
existing laws or the Constitution. (Emphasis supplied)

71 Republic Act No. 8799. Section 5 of R.A. No. 8799 provides:

Section 5. Powers and Functions of the Commission.– 5.1. The Commission shall act
with transparency and shall have the powers and functions provided by this Code,
Presidential Decree No. 902-A, the Corporation Code, the Investment Houses Law,
the Financing Company Act and other existing laws. Pursuant thereto the
Commission shall have, among others, the following powers and functions:

(a) Have jurisdiction and supervision over all corporations, partnerships or

associations who are the grantees of primary franchises and/or a license or a permit
issued by the Government;

xxx

(c) Approve, reject, suspend, revoke or require amendments to registration

statements, and registration and licensing applications;

xxx

(f) Impose sanctions for the violation of laws and the rules, regulations and orders,
issued pursuant thereto;

xxx

(i) Issue cease and desist orders to prevent fraud or injury to the investing public;

xxx

(m) Suspend, or revoke, after proper notice and hearing the franchise or certificate of
registration of corporations, partnership or associations, upon any of the grounds
provided by law; and

(n) Exercise such other powers as may be provided by law as well as those which
may be implied from, or which are necessary or incidental to the carrying out of, the
express powers granted the Commission to achieve the objectives and purposes of
these laws.
The Lawphil Project - Arellano Law Foundation

SEPARATE DISSENTING OPINION

VELASCO, JR., J.:

With due respect, I dissent.

A summary of the pertinent facts is as follows:

Philippine Long Distance Telephone Company (PLDT), a Philippine-registered telecommunications

firm, was granted an initial 50-year charter and the right to establish a telephone network by Act No.
3436 on November 28, 1928.1

In 1969, American-owned General Telephone and Electronics Corporation (GTE), a major

shareholder of PLDT, sold 26% of PLDT’s equity to Philippine Telecommunications Investment
Corporation (PTIC).2 PTIC was incorporated on November 9, 1967 and is engaged in the business of
investment holdings. It held 26,034,263 of PLDT shares, or 13.847% of the total outstanding
common stocks of PLDT.3

In 1977, Prime Holdings Inc. (PHI) was incorporated and 100% owned by the Conjuangco group.
Subsequently, PHI became the owner of 111,415 shares or 46.125% of PTIC by virtue of three (3)
Deeds of Assignment executed by Ramon Cojuangco and Luis Tirso Rivilla.4

On May 9, 1986, the 111,415 PTIC shares held by PHI were sequestered by the Presidential
Commission on Good Government (PCGG) pursuant to Executive Order No. 1.5 Later, this Court
declared the said shares to be owned by the Republic of the Philippines.6

In 1999, First Pacific Company Limited (First Pacific), a Bermuda-registered, Hong Kong-based
investment firm, acquired the remaining 54% equity of PTIC.7

Thereafter, the government decided to sell its 46.1% stake in PTIC (equivalent to 6.4% indirect stake
in PLDT), designating the Privatization Council of the Philippine Government as the disposition
entity. On December 8, 2006, a public bidding was held where Singapore-based Parallax Capital
Management LP (Parallax) emerged as the highest bidder with an offer of PhP 25,217,556,000.8

On January 31, 2007, the House of Representatives Committee on Good Government conducted a
public hearing on the particulars of the impending sale. Finance Secretary Margarito Teves, Finance
Undersecretary John Sevilla, PCGG Chairperson Camilo Sabio, Commissioners Narciso Nario and
Nick Conti, Securities and Exchange Commission (SEC) General Counsel Vernette Umali-Paco,
Philippine Stock Exchange (PSE) Chairperson Jose Vitug and President Francisco Ed Lim,
Development Bank of the Philippines (DBP) President Reynaldo David and Director Miguel Romero
all attended the hearing.9

In Report No. 2270, the House Committee on Good Government concluded that: (1) the auction of
the government’s PTIC shares bore due diligence, transparency and conformity with existing legal
procedures; and (2) First Pacific’s intended acquisition of the government’s PTIC shares resulting in
its 100% ownership in PTIC will not violate the 40% constitutional limit on foreign ownership of a
public utility since PTIC held only 13.847% of the total outstanding common stocks of PLDT.10

Subsequently, the government informed First Pacific of the results of the bidding and gave it until
February 1, 2007 to exercise its right of first refusal as provided under PTIC’s Articles of
Incorporation. Consequently, First Pacific announced that it would match Parallax’s bid.11 However,
First Pacific failed to raise the money for the purchase by the February 1, 2007 deadline and,
instead, yielded the right to PTIC itself. The deadline was then reset to March 2, 2007.12

On February 14, 2007, First Pacific, through its subsidiary, Metro Pacific Assets Holdings Inc.
(MPAH), entered into a Conditional Sale and Purchase Agreement with the government for the
latter’s 46.1% stake in PTIC at the price of PhP 25,217,556,000.13 The acquisition was completed on
February 28, 2007.

On the same date, Wilson Gamboa (Gamboa) filed the instant petition for prohibition, injunction,
declaratory relief and declaration of nullity of sale of the 111,415 shares of PTIC. He argues that: (1)
the consummation of the impending sale of 111,415 shares to First Pacific violates the constitutional
limitation on foreign ownership of a public utility; (2) respondents committed grave abuse of
discretion by allowing the sale of PTIC shares to First Pacific; (3) respondents have made a
complete misrepresentation of the impending sale by saying that it does not breach the constitutional
limitation on foreign ownership of a public utility; and (4) the sale of common shares to foreigners in
excess of 40% of the entire subscribed common capital stock violates the 1987 Philippine
Constitution.14

After a careful examination of the facts and law applicable to the case, I submit that the petition
should be dismissed.

At the outset, it is strikingly clear that the petition suffers from several jurisdictional and procedural
defects.

Petitioner Has No Locus Standi

Petitioner Gamboa claims that he filed the petition in his capacity as a "nominal shareholder of PLDT
and as [a] taxpayer."15 However, these claims do not clothe him with the requisite legal standing to
bring this suit.

The Rules of Court specifically requires that "[e]very action must be prosecuted or defended in the
name of the real party in interest."16 A real party in interest is defined as the "party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit."

Petitioner has failed to allege any interest in the 111,415 PTIC shares nor in any of the previous
purchase contracts he now seeks to annul. He is neither a shareholder of PTIC nor of First Pacific.
Also, he has not alleged that he was an interested bidder in the government’s auction sale of the
PTIC shares. Finally, he has not shown how, as a nominal shareholder of PLDT, he stands to benefit
from the annulment of the sale of the 111,415 PTIC shares or of any of the sales of the PLDT
common shares held by foreigners. In fine, petitioner has not shown any real interest substantial
enough to give him the requisite locus standi to question the sale of the government’s PTIC shares
to First Pacific.

Likewise, petitioner’s assertion that he has standing to bring the suit as a "taxpayer" must fail. In
Gonzales v. Narvasa, We discussed that "a taxpayer is deemed to have the standing to raise a
constitutional issue when it is established that public funds have been disbursed in alleged
contravention of the law or the Constitution."17 In this case, no public funds have been disbursed. In
fact, the opposite has happened––there is an inflow of funds into the government coffers.

Evidently, petitioner Gamboa has no legal standing to bring the present petition before this Court.

This Court Has No Jurisdiction

Petitioner Gamboa filed four (4) different petitions before this Court––declaratory relief, annulment,
prohibition and injunction. However, all of these actions are not within the exclusive and/or original
jurisdiction of the Supreme Court.

Article VII of the 1987 Constitution, particularly Section 5(1), in relation to Sec. 5(5), enumerates the
instances where this Court exercises original jurisdiction:

Article VIII

Section 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and
legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

Accordingly, this Court promulgated the Rules of Court, Sec. 1, Rule 56 of which states:

RULE 56
Original Cases

Section 1. Original cases cognizable. – Only petitions for certiorari, prohibition, mandamus, quo
warranto, habeas corpus, disciplinary proceedings against members of the judiciary and attorneys,
and cases affecting ambassadors, other public ministers and consuls may be filed originally in the
Supreme Court.

Based on the foregoing provisos, it is patently clear that petitions for declaratory relief, annulment of
sale and injunction do not fall within the exclusive original jurisdiction of this Court.

First, the court with the proper jurisdiction for declaratory relief is the Regional Trial Court (RTC).
Sec. 1, Rule 63 of the Rules of Court stresses that an action for declaratory relief is within the
exclusive original jurisdiction of the RTC, viz:

Any person interested under a deed, will, contract or other written instrument, whose rights are
affected by a statute, executive order or regulation, ordinance, or any other governmental regulation
may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to
determine any question of construction or validity arising, and for a declaration of his rights or duties,
thereunder. (Emphasis supplied.)

An action for declaratory relief also requires the following: (1) a justiciable controversy between
persons whose interests are adverse; (2) the party seeking the relief has a legal interest in the
controversy; and (3) the issue is ripe for judicial determination.18 As previously discussed, petitioner
lacks any real interest in this action; thus, no justiciable controversy between adverse interests
exists.

Further, the Rules of Court also requires that "[a]ll persons who have or claim any interest which
would be affected by the declaration shall be made parties."19 The failure to implead all persons with
a claim or interest in the subject matter of the petition for declaratory relief is a jurisdictional defect. 20

What is more, an action for declaratory relief requires that it be filed before "the breach or violation of
the statute, deed, contract, etc. to which it refers. Where the law or contract has already been
contravened prior to the filing of an action for declaratory relief, the court can no longer assume
jurisdiction over the action."21 Here, petitioner himself points out the fact that, using the common
stockholding basis, the 40% maximum foreign ownership limit on PLDT was already violated long
before the sale of the PTIC shares by the government.22 In addition, the sale itself has already been
consummated. This only means that an action for declaratory relief is no longer proper.

Despite this, the ponencia decided to treat the petition for declaratory relief as one for mandamus,
citing the rule that "where the petition has far-reaching implications and raises questions that should
be resolved, it may be treated as one for mandamus."23 However, such rule is not absolute. In
Macasiano v. National Housing Authority,24 the Court explicitly stated that the exercise of such
discretion, whether to treat a petition for declaratory relief as one for mandamus, presupposes that
the petition is otherwise viable or meritorious. As I shall discuss subsequently in the substantive
portion of this opinion, the petition in this case is clearly not viable or meritorious.

Moreover, one of the reasons pointed out by the Court in Macasiono when it refused to treat the
petition for declaratory relief as one for mandamus was that the petitioner lacked the proper standing
to file the petition. Thus, the petition was subsequently dismissed. This is exactly similar to the
instant case. As previously explained, petitioner has no legal standing to bring the present petition
before this Court. He failed to show any real interest in the case substantial enough to give him the
required legal standing to question the sale of the PTIC shares of the government to First Pacific.

Further, a petition for mandamus is premature if there are administrative remedies available to
petitioner.25 Under the doctrine of primary administrative jurisdiction, "courts cannot or will not
determine a controversy where the issues for resolution demand the exercise of sound
administrative discretion requiring the special knowledge, experience, and services of the
administrative tribunal to determine technical and intricate matters of fact. In other words, if a case is
such that its determination requires the expertise, specialized training and knowledge of an
administrative body, relief must first be obtained in an administrative proceeding before resort to the
courts is had even if the matter may well be within their proper jurisdiction."26 Along with this, the
doctrine of exhaustion of administrative remedies also requires that where an administrative remedy
is provided by statute relief must be sought by exhausting this remedy before the courts will act.27

In the instant case, the power and authority to determine compliance with the Constitution lies with
the SEC. Under Section 17(4) of the Corporation Code, the SEC has the power to approve or reject
the Articles of Incorporation of any corporation where "the required percentage of ownership of the
capital stock to be owned by citizens of the Philippines has not been complied with as required by
existing laws or the Constitution." Similarly, under Section 5 of the Securities Regulation Code, the
SEC is conferred with the power to suspend or revoke the franchise or certificate of registration of
corporations upon any of the grounds provided by law.28 It bears stressing that the SEC also has the
power to investigate violations of the Securities Regulation Code and its Amended Rules. With this,
it is clear that petitioner failed to invoke the primary jurisdiction of the SEC with respect to this
matter.

Additionally, the petition contains numerous questions of fact which is not allowed in a petition for
mandamus.29Hence, based on the foregoing, a petition for mandamus is evidently improper.

Second, since an action for annulment of sale is an ordinary civil action incapable of pecuniary
estimation,30 it also falls within the exclusive original jurisdiction of the RTC.31

Lastly, although this Court, the CA, and the RTC have "concurrent jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence
does not give the petitioner unrestricted freedom of choice of court forum."32 The doctrine of
hierarchy of courts dictates that when jurisdiction is shared concurrently with different courts, the
proper suit should first be filed with the lower-ranking court. Failure to do so is sufficient cause for
the dismissal of a petition.33

In Santiago v. Vasquez,34 the Court took the opportunity to explain why the blatant disregard of the
hierarchy of courts is frowned upon, to wit:

x x x We discern in the proceedings in this case a propensity on the part of petitioner, and, for that
matter, the same may be said of a number of litigants who initiate recourses before us, to disregard
the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact
that the same is available in the lower courts in the exercise of their original or concurrent
jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only
because of the imposition upon the precious time of this Court but also because of the inevitable and
resultant delay, intended or otherwise, in the adjudication of the case which often has to be
remanded or referred to the lower court as the proper forum under the rules of procedure, or as
better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate
the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot
be obtained in the appropriate courts or where exceptional and compelling circumstances justify
availment of a remedy within and calling for the exercise of our primary jurisdiction.

In the instant case, petitioner should have filed the petition for injunction and prohibition with the trial
courts. Petitioner failed to show any exceptional or compelling circumstance to justify the exception
to the rule of hierarchy of courts. Thus, absent such justification, the rule must be upheld.

In fact, in Fernandez v. Cojuangco,35 which also involved a similar issue, questioning the issuance of
PLDT’s common shares to Smart and NTT’s stockholders on the ground, among others, that such
issuance of shares violated the 40% foreign ownership constitutional restriction for public utilities,
this Court issued a Resolution dismissing the petition filed with it for disregarding the hierarchy of
courts.

More importantly, the function of a writ of prohibition is to prevent the performance of an act which is
yet to be done. It is not intended to provide a remedy for acts already performed.36 The rationale
behind this was discussed in Cabanero v. Torres,37 citing U.S. v. Hoffman,38 viz:

The writ of prohibition, as its name imports, is one which commands the person to whom it is
directed not to do something which, by the suggested to the relator, the court is informed he is about
to do. If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would
require an affirmative act; and the only effect to a writ of prohibition is to suspend all action, and to
prevent any further proceeding in the prohibited direction.

As previously pointed out, the sale by the government of the PTIC shares had already been
completed. Thus, the Petition for Prohibition has become moot. As a result, this Court has no
obligation to entertain the petition.

Finally, it should be noted that the non-joinder of ordinary civil actions with special civil actions is
elementary in remedial law. Sec. 5, Rule 2 of the Rules specifically prohibits the joining of special
civil actions or actions governed by special rules with ordinary civil actions.39 In this case, petitioner
violated this basic rule when he joined several special civil actions, prohibition and declaratory relief,
and the ordinary civil actions for annulment and injunction.

Violation of Due Process

It is a fundamental guarantee in the Constitution that "[n]o person shall be deprived of life, liberty or
property without due process of law."40 Due process has two aspects: substantive and procedural.
Substantive due process is a prohibition of arbitrary laws, while procedural due process is a
guarantee of procedural fairness.41 Here, what petitioner asks of this Court is a finding of a violation
of both substantive and procedural due process.

Sec. 11, Art. XII of the Constitution contemplates of two situations: first, where the applicant of a
franchise is a natural person, he must be a Filipino citizen; and second, where the applicant is a
juridical person, 60% of its capital must be owned by Filipino citizens. In the first scenario, only one
person and one property is involved, i.e., the Filipino citizen and his or her franchise. In the second,
two different property holders and two different properties are involved, i.e., the public utility
company holding its franchise and the shareholders owning the capital of the utility company.
However, in both situations, Sec. 11 imposes a qualification for the retention of property on just one
property holder, the franchise holder, as a condition for keeping his or its franchise. It imposes no
nationality qualification on the shareholders of the utility company as a condition for keeping their
shares in the utility company. Thus, if a utility company or the franchise holder fails to maintain the
nationality qualification, only its franchise should be revoked.

In J.G. Summit Holdings, Inc. v. CA,42 this Court had the chance to rule on a similar set of facts. In
that case, We refused to annul the sale of the government’s shares despite the petitioner’s claim that
it would breach the maximum 40% foreign ownership limit found in the Constitution. According to the
Court:

x x x In fact, it can even be said that if the foreign shareholdings of a landholding corporation
exceeds 40%, it is not the foreign stockholders’ ownership of the shares which is adversely affected
but the capacity of the corporation to own land – that is, the corporation becomes disqualified to own
land. This finds support under the basic corporate law principle that the corporation and its
stockholders are separate juridical entities. In this vein, the right of first refusal over shares pertains
to the shareholders whereas the capacity to own land pertains to the corporation. Hence, the fact
that PHILSECO owns land cannot deprive stockholders of their right of first refusal. No law
disqualifies a person from purchasing shares in a landholding corporation even if the latter will
exceed the allowed foreign equity, what the law disqualifies is the corporation from owning land.
(Emphasis supplied.)

Certainly, the Court has differentiated the two property owners and their properties. Confusing the
two would result in "an unreasonable curtailment of property rights without due process of law."43
Furthermore, procedural due process requires that before any of the common shares in excess of
the 40% maximum foreign ownership limit can be taken, all the shareholders have to be given notice
and a trial should be held before their shares are taken. This means that petitioner should have
impleaded all the foreign natural and juridical shareholders of PLDT so that they can be heard. The
foreign shareholders are considered as an "indispensable party" or one who:

has such an interest in the controversy or subject matter that a final adjudication cannot be made, in
his absence, without injuring or affecting that interest[;] a party who has not only an interest in the
subject matter of the controversy, but also has an interest of such nature that a final decree cannot
be made without affecting his interest or leaving the controversy in such a condition that its final
determination may be wholly inconsistent with equity and good conscience. It has also been
considered that an indispensable party is a person in whose absence there cannot be a
determination between the parties already before the court which is effective, complete, or equitable.
Further, an indispensable party is one who must be included in an action before it may properly go
forward.44

At the same time, the Rules of Court explicitly requires the joinder of indispensable parties or
"[p]arties in interest without whom no final determination can be had."45 This is mandatory. As held in
Pepsico, Inc. v. Emerald Pizza, Inc.,46 their absence renders all actions of the court null and void, viz:

x x x x Their presence is necessary to vest the court with jurisdiction, which is "the authority to hear
and determine a cause, the right to act in a case." Thus, without their presence to a suit or
proceeding, judgment of a court cannot attain real finality. The absence of an indispensable party
renders all subsequent actions of the court null and void for want of authority to act, not only as to
the absent parties but even as to those present. (Emphasis supplied.)

In this case, petitioner failed to implead all the indispensable parties. Accordingly, in the absence of
such indispensable parties, this Court is wanting in authority to act or rule on the present petition.

Ultimately, the present petition partakes of a collateral attack on PLDT’s franchise as a public utility
with petitioner pleading as ground PLDT’s alleged breach of the 40% limit on foreign equity. Such is
not allowed. As discussed in PLDT v. National Telecommunications Commission,47 a franchise is a
property right that can only be questioned in a direct proceeding:

x x x A franchise is a property right and cannot be revoked or forfeited without due process of law.
The determination of the right to the exercise of a franchise, or whether the right to enjoy such
privilege has been forfeited by non-user, is more properly the subject of the prerogative writ of quo
warranto, the right to assert which, as a rule, belongs to the State "upon complaint or otherwise" x x
x the reason being that the abuse of a franchise is a public wrong and not a private injury. A
forfeiture of a franchise will have to be declared in a direct proceeding for the purpose brought by the
State because a franchise is granted by law and its unlawful exercise is primarily a concern of
Government.

Hence, due process requires that for the revocation of franchise a petition for quo warranto be filed
directly attacking the franchise itself.

Evidently, the petition is patently flawed and the petitioner availed himself of the wrong remedies.
These jurisdictional and procedural grounds, by themselves, are ample enough to warrant the
dismissal of the petition. Granting arguendo that the petition is sufficient in substance and form, it will
still suffer the same fate.

The Proper Definition of "Capital"

Petitioner’s main substantive issue revolves around the proper definition of the word "capital" found
in Section 11, Article 12 of the Constitution. The said section reads:

Section 11. No franchise, certificate, or any other form of authorization for the operation of a public
utility shall be granted except to citizens of the Philippines or to corporations or associations
organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by
such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a
longer period than fifty years. Neither shall any such franchise or right be granted except under the
condition that it shall be subject to amendment, alteration, or repeal by the Congress when the
common good so requires. The State shall encourage equity participation in public utilities by the
general public. The participation of foreign investors in the governing body of any public utility
enterprise shall be limited to their proportionate share in its capital, and all the executive and
managing officers of such corporation or association must be citizens of the Philippines. (Emphasis
supplied.)

He argues that the framers of the Constitution intended the word "capital" to be limited to voting
shares alone and not the total outstanding capital stock (combined total of voting and non-voting
shares). Specifically, he contends that the term "capital" refers only to shares of stock that can vote
in the election of the members of the Board of Directors. The question is, is this the proper
definition?

The ponencia resolved this in the affirmative and held that the term "capital" only refers to voting
shares since these are the shares that "have voting rights which translate to control"48, i.e., the right
to elect directors who ultimately control or manage the corporation. Generally, these are referred to
as "common" shares. However, he clarified that if preferred shares also have the right to vote in the
election of the members of the Board of Directors, then the term "capital" shall also include such
preferred shares. Further, the ponencia maintains that "mere legal title is insufficient to meet the
required Filipino equity," but that "full beneficial ownership of the stocks coupled with appropriate
voting rights" is required.49

I beg to disagree with the ponencia’s resolution of this issue for the following reasons:

First, contrary to pronouncement of the ponencia, the intent of the framers of the Constitution was
not to limit the application of the word "capital" to voting or common shares alone. In fact, the
Records of the Constitutional Commission reveal that even though the UP Law Center proposed the
phrase "voting stock or controlling interest," the framers of the Constitution did not adopt this but
instead used the word "capital," viz:

MR. BENGZON. We would also like to indicate that perhaps the better term in order to avoid any
conflict or misinterpretations would be the use of the phrase "capital stock."

MR. NATIVIDAD. Capital stock?

MR. SUAREZ. We will discuss that on the committee level because precisely, there were three
criteria that were submitted. One of them is with reference to the authorized capital stock; the
second would be with respect to the voting rights; and the third would be with respect to the
management. And so, again, we would like to inform the members that the Committee is still trying
to polish this particular provision.50

xxxx
MR. FOZ. Mr. Vice-President, in Sections 3 and 9,51 the provision on equity is both 60 percent, but I
notice that this is now different from the provision in the 1973 Constitution in that the basis for the
equity provision is voting stock or controlling interest instead of the usual capital percentage as
provided for in the 1973 Constitution. We would like to know what the difference would be between
the previous and the proposed provisions regarding equity interest.

MR. VILLEGAS. Commissioner Suarez will answer that.

MR. SUAREZ. Thank you.

As a matter of fact, this particular portion is still being reviewed by this Committee. In Section 1,
Article XIII of the 1935 Constitution, the wording is that the percentage should be based on the
capital which is owned by such citizens. In the proposed draft, this phrase was proposed: "voting
stock or controlling interest." This was a plan submitted by the UP Law Center.

Three days ago, we had an early morning breakfast conference with the members of the UP Law
Center and precisely, we were seeking clarification regarding the difference. We would have three
criteria to go by: One would be based on capital, which is capital stock of the corporation,
authorized, subscribed or paid up, as employed under the 1935 and the 1973 Constitution. The idea
behind the introduction of the phrase "voting stock or controlling interest" was precisely to avoid the
perpetration of dummies, Filipino dummies of multinationals. It is theoretically possible that a
situation may develop where these multinational interests would not really be only 40 percent but will
extend beyond that in the matter of voting because they could enter into what is known as a voting
trust or voting agreement with the rest of the stockholders and, therefore, notwithstanding the fact
that on record their capital extent is only up to 40-percent interest in the corporation, actually, they
would be managing and controlling the entire company. That is why the UP Law Center members
suggested that we utilize the words "voting interest" which would preclude multinational control in the
matter of voting, independent of the capital structure of the corporation. And then they also added
the phrase "controlling interest" which up to now they have not been able to successfully define the
exact meaning of. x x x And as far as I am concerned, I am not speaking in behalf of the Committee,
I would feel more comfortable if we go back to the wording of the 1935 and the 1973 Constitution,
that is to say, the 60-40 percentage could be based on the capital stock of the corporation.

MR. FOZ. I understand that that was the same view of Dean Carale who does not agree with the
other on this panel at the UP Law Center regarding the percentage of the ratio.

MR. Suarez. That is right. Dean Carale shares my sentiment about this matter.

MR. BENGZON. I also share the sentiment of Commissioner Suarez in that respect. So there are
already two in the Committee who want to go back to the wording of the 1935 and the 1973
Constitution.52

xxxx

MR. TREÑAS. Madam President, may I propose an amendment on line 14 of Section 3 by deleting
therefrom "whose voting stock and controlling interest." And in lieu thereof, insert the CAPITAL so
the line should read: "associations at least sixty percent of the CAPITAL is owned by such citizens.

MR. VILLEGAS. We accept the amendment.

MR. TREÑAS. Thank you.

THE PRESIDENT. The amendment of Commissioner Treñas on line 14 has been accepted by the
Committee.

Is there any objection? (Silence) The Chair hears none; the amendment is approved.53

xxxx

MR. VILLEGAS. Yes, Commissioner Davide has accepted the word "CAPITAL" in place of "voting
stock or controlling interest." This is an amendment already accepted by the Committee.54 x x x x

xxxx

MR. NOLLEDO. Thank you, Madam President.

I would like to propound some questions to the chairman and members of the committee. I have
here a copy of the approved provisions on Article on the National Economy and Patrimony. On page
2, the first two lines are with respect to the Filipino and foreign equity and I said: "At least sixty
percent of whose capital or controlling interest is owned by such citizen."

I notice that this provision was amended by Commissioner Davide by changing "voting stocks" to
"CAPITAL," but I still notice that there appears the term "controlling interest" which seems to refer to
associations other than corporations and it is merely 50 percent plus one percent which is less than
60 percent. Besides, the wordings may indicate that the 60 percent may be based not only on capital
but also on controlling interest; it could mean 60 percent or 51 percent.

Before I propound the final question, I would like to make a comment in relation to Section 15 since
they are related to each other. I notice that in Section 15, there still appears the phrase "voting stock
or controlling interest." The term "voting stocks" as the basis of the Filipino equity means that if 60
percent of the voting stocks belong to Filipinos, foreigners may not own more than 40 percent of the
capital as long as the 40 percent or the excess thereof will cover nonvoting stock. This is aside from
the fact that under the Corporation Code, even nonvoting shares can vote on certain instances.
Control over investments may cover aspects of management and participation in the fruits of
production or exploitation.

So, I hope the committee will consider favorably my recommendation that instead of using
"controlling interests," we just use "CAPITAL" uniformly in cases where foreign equity is permitted by
law, because the purpose is really to help the Filipinos in the exploitation of natural resources and in
the operation of public utilities. I know the committee, at its own instance, can make the amendment.

What does the committee say?

MR. VILLEGAS. We completely agree with the Commissioner’s views. Actually, it was really an
oversight. We did decide on the word "CAPITAL." I think it was the opinion of the majority that the
phrase "controlling interest" is ambiguous.

So, we do accept the Commissioner’s proposal to eliminate the phrase "or controlling interest" in all
the provisions that talk about foreign participation. (Emphasis supplied.)

MR. NOLLEDO. Not only in Section 3, but also with respect to Section 15.

Thank you very much.55

Undoubtedly, the framers of the Constitution decided to use the word "capital" in all provisions that
talk about foreign participation and intentionally left out the phrase "voting stocks" or "controlling
interest." Cassus Omissus Pro Omisso Habendus Est––a person, object or thing omitted must have
been omitted intentionally. In this case, the intention of the framers of the Constitution is very clear––
to omit the phrases "voting stock" and "controlling interest."

Evidently, the framers of the Constitution were more comfortable with going back to the wording of
the 1935 and 1973 Constitutions, which is to use the 60-40 percentage for the basis of the capital
stock of the corporation. Additionally, the phrases "voting stock or controlling interest" were also
initially used in Secs. 256 and 10,57 Article XII of the 1987 Constitution. These provisions involve the
development of natural resources and certain investments. However, after much debate, they were
also replaced with the word "capital" alone. All of these were very evident in the aforementioned
deliberations.

Much more significant is the fact that a comprehensive examination of the constitutional
deliberations in their entirety will reveal that the framers of the Constitution themselves understood
that the word capital includes both voting and non-voting shares and still decided to use "capital"
alone, to wit:

MR. AZCUNA. May I be clarified as to that portion that was accepted by the Committee.

MR. VILLEGAS. The portion accepted by the Committee is the deletion of the phrase "voting stock
or controlling interest."

MR. AZCUNA. Hence, without the Davide amendment, the committee report would read:
"corporations or associations at least sixty percent of whose CAPITAL is owned by such citizens."

MR. VILLEGAS. Yes.

MR. AZCUNA. So if the Davide amendment is lost, we are stuck with 60 percent of the capital to be
owned by citizens?

MR. VILLEGAS. That is right.

xxxx

MR. AZCUNA. Yes, but what I mean is that the control should be with the Filipinos.

MR. BENGZON. Yes, that is understood.

MR. AZCUNA. Yes, because if we just say "sixty percent of whose capital is owned by the Filipinos,"
the capital may be voting or non-voting.

MR. BENGZON. That is correct.58

xxxx

MR. GARCIA. Thank you very much, Madam President.

I would like to propose the following amendment on Section 3, line 14 on page 2. I propose to
change the word "sixty" to SEVENTY-FIVE. So, this will read: "or it may enter into co-production,
joint venture, production sharing agreements with Filipino citizens or corporations or associations at
least SEVENTY-FIVE percent of whose CAPITAL stock or controlling interest is owned by such
citizens."

MR. VILLEGAS. This is just a correction. I think Commissioner Azcuna is not insisting on the
retention of the phrase "controlling interest," so we will retain "CAPITAL" to go back really to the
1935 and 1973 formulations.59 (Emphasis supplied.)

To emphasize, by using the word "capital," the framers of the Constitution adopted the definition or
interpretation that includes all types of shares, whether voting or non-voting.

The fundamental principle in the construction of constitutional provisions is "to give the intent to the
framers of the organic law and the people adopting it. The intention to which force is to be given is
that which is embodied and expressed in the constitutional provisions themselves."60 Generally, "in
construing constitutional provisions which are ambiguous or of doubtful meaning, the courts may
consider the debates in the constitutional convention as throwing light on the intent of the framers of
the Constitution. It is true that the intent of the convention is not controlling by itself, but as its
proceeding was preliminary to the adoption by the people of the Constitution the understanding of
the convention as to what was meant by the terms of the constitutional provision which was the
subject of the deliberation, goes a long way toward explaining the understanding of the people when
they ratified it."61

Second, the ponencia also points to the provisions of the Foreign Investments Act of 1991 (FIA),62 as
a reinforcement of the interpretation of the word "capital" as only referring to those shares entitled to
vote. However, a careful examination of its provisions would reveal otherwise.

Section 3(a) of the FIA, as amended, defines the term "Philippine national" as:

SEC. 3. Definitions. - As used in this Act:

a. The term "Philippine national" shall mean a citizen of the Philippines; of a domestic partnership or
association wholly owned by citizens of the Philippines; or a corporation organized under the laws of
the Philippines of which at least sixty percent (60%) of the capital stock outstanding and entitled to
vote is owned and held by citizens of the Philippines; or a corporation organized abroad and
registered as doing business in the Philippines under the Corporation Code of which one hundred
percent (100%) of the capital stock outstanding and entitled to vote is wholly owned by Filipinos or a
trustee of funds for pension or other employee retirement or separation benefits, where the trustee is
a Philippine national and at least sixty percent (60%) of the fund will accrue to the benefit of
Philippine nationals: Provided, That where a corporation and its non-Filipino stockholders own
stocks in a Securities and Exchange Commission (SEC) registered enterprise, at least sixty percent
(60%) of the capital stock outstanding and entitled to vote of each of both corporations must be
owned and held by citizens of the Philippines and at least sixty percent (60%) of the members of the
Board of Directors of each of both corporations must be citizens of the Philippines, in order that the
corporation, shall be considered a "Philippine national." (Emphasis supplied.)

The ponencia failed to see the fact that the FIA specifically has the phrase "entitled to vote" after the
phrase "total outstanding capital stock." Logically, this means that interpreting the phrase "total
outstanding capital stock" alone connotes the inclusion of all types of shares under the term "capital"
and not just those that are entitled to vote. By adding the phrase "entitled to vote," the FIA sought to
distinguish between the shares that can vote and those that cannot. Thus, it is very clear that even
the FIA itself supports the definition of the term "capital" as including all types of shares.
As a matter of fact, in the Senate deliberations of the FIA, Senator Angara pointed out that the word
"capital," as used in the 1987 Constitution, includes all types of shares:

Senator Angara. x x x x

Before I leave that point, Mr. President, as we know, the constitutional test is capital. That means,
equity investment, not control. Would this control test then now become an additional requirement to
the constitutional requirement?

Senator Paterno. Well, this is an amplification of the constitutional stipulation, Mr. President. It is a
definition, by law, of what is contained in the Constitution.

Senator Angara. No, Mr. President, because the Constitution requires 60 percent of capital. That
means, whether voting or nonvoting, 60 percent of that must belong to Filipinos. Whereas, under this
proposed definition, it is only the voting shares that we require to be 60 percent owned.

Senator Paterno. Yes.

Senator Angara. So, my question is: Would this requirement of control be in addition to what the
Constitution imposes?

Senator Paterno. No, this would be the definition of what the Constitution requires. We are saying
that it is the capital stock outstanding and entitled to vote. It is the definition of capital as maintained
by the Constitution.

Senator Angara. On the contrary, I am saying that the constitutional test is capital, which is
distinguished from capital stock entitled to vote. Capital means equity which can be voting or
nonvoting, common or preferred. That is the constitutional test.63 x x x (Emphasis supplied.)

Moreover, it is a well-settled rule of statutory construction that a statute should be construed

whenever possible in a manner that will avoid conflict with the Constitution.64 Where a statute is
reasonably susceptible of two constructions, one constitutional and the other unconstitutional, the
construction in favor of its constitutionality should be adopted.

In this case, the FIA should be read in harmony with the Constitution. Since the Constitution only
provides for a single requirement for the operation of a public utility under Sec. 11, i.e., 60% capital
must be Filipino-owned, a mere statute cannot add another requirement. Otherwise, such statute
may be considered unconstitutional.

Accordingly, the phrase "entitled to vote" should not be interpreted to be limited to common shares
alone or those shares entitled to vote in the election of members of the Board of Directors. It should
also include those deemed non-voting because they also have voting rights. Sec. 6 of the
Corporation Code65 grants voting rights to holders of shares of a corporation on certain key
fundamental corporate matters despite being classified as non-voting in the articles of incorporation.
These are:

1. Amendment of the articles of incorporation;

2. Adoption and amendment of by-laws;

 3. Sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of
the corporate property;

4. Incurring, creating or increasing bonded indebtedness;

5. Increase or decrease of capital stock;

6. Merger or consolidation of the corporation with another corporation or other corporations;

7. Investment of corporate funds in another corporation or business in accordance with this

Code; and

8. Dissolution of the corporation.

Clearly, the shares classified as non-voting are also entitled to vote under these circumstances.

In fact, the FIA did not say "entitled to vote in the management affairs of the corporation" or "entitled
to vote in the election of the members of the Board of Directors." Verily, where the law does not
distinguish, neither should We. Hence, the proper interpretation of the phrase "entitled to vote" under
the FIA should be that it applies to all shares, whether classified as voting or non-voting shares.
Such construction is in fact in harmony with the fundamental law of the land.

Stockholders, whether holding voting or non-voting stocks, have all the rights, powers and privileges
of ownership over their stocks. This necessarily includes the right to vote because such is inherent in
and incidental to the ownership of corporate stocks, and as such is a property right.66

Additionally, control is another inherent right of ownership.67 The circumstances enumerated in Sec.
6 of the Corporation Code clearly evince this. It gives voting rights to the stocks deemed as non-
voting as to fundamental and major corporate changes. Thus, the issue should not only dwell on the
daily management affairs of the corporation but also on the equally important fundamental changes
that may need to be voted on. On this, the "non-voting" shares also exercise control, together with
the voting shares.

Consequently, the fact that only holders of common shares can elect a corporation’s board of
directors does not mean that only such holders exercise control over the corporation. Particularly,
the control exercised by the board of directors over the corporation, by virtue of the corporate entity
doctrine, is totally distinct from the corporation’s stockholders and any power stockholders have over
the corporation as owners.

It is settled that when the activity or business of a corporation falls within any of the partly
nationalized provisions of the Constitution or a special law, the "control test" must also be applied to
determine the nationality of a corporation on the basis of the nationality of the stockholders who
control its equity.

The control test was laid down by the Department of Justice (DOJ) in its Opinion No. 18 dated
January 19, 1989. It determines the nationality of a corporation with alien equity based on the
percentage of capital owned by Filipino citizens. It reads:

Shares belonging to corporations or partnerships at least 60% of the capital of which is owned by
Filipino citizens shall be considered as Philippine nationality, but if the percentage of Filipino
ownership in the corporation or partnership is less than 60% only the number of shares
corresponding to such percentage shall be counted as of Philippine nationality.68

In a catena of opinions, the SEC, "the government agency tasked with the statutory duty to enforce
the nationality requirement prescribed in Section 11, Article XII of the Constitution on the ownership
of public utilities,"69 has consistently applied the control test.70

The FIA likewise adheres to the control test. This intent is evident in the May 21, 1991 deliberations
of the Bicameral Conference Committee (Committees on Economic Affairs of the Senate and House
of Representatives), to wit:

CHAIRMAN TEVES. x x x On definition of terms, Ronnie, would you like anything to say here on the
definition of terms of Philippine national?

HON. RONALDO B. ZAMORA. I think we’ve – we have already agreed that we are adopting here
the control test. Wasn’t that the result of the –

CHAIRMAN PATERNO. No. I thought that at the last meeting, I have made it clear that the Senate
was not able to make a decision for or against the grandfather rule and the control test, because we
had gone into caucus and we had voted but later on the agreement was rebutted and so we had to
go back to adopting the wording in the present law which is not clearly, by its language, a control test
formulation.

HON. ANGARA. Well, I don’t know. Maybe I was absent, Ting, when that happened but my
recollection is that we went into caucus, we debated [the] pros and cons of the control versus the
grandfather rule and by actual vote the control test bloc won. I don’t know when subsequent
rejection took place, but anyway even if the – we are adopting the present language of the law I think
by interpretation, administrative interpretation, while there may be some differences at the beginning,
the current interpretation of this is the control test. It amounts to the control test.

CHAIRMAN TEVES. That’s what I understood, that we could manifest our decision on the control
test formula even if we adopt the wordings here by the Senate version.

xxxx

CHAIRMAN PATERNO. The most we can do is to say that we have explained – is to say that
although the House Panel wanted to adopt language which would make clear that the control test is
the guiding philosophy in the definition of [a] Philippine national, we explained to them the situation
in the Senate and said that we would be – was asked them to adopt the present wording of the law
cognizant of the fact that the present administrative interpretation is the control test interpretation.
But, you know, we cannot go beyond that.71

MR. AZCUNA. May I be clarified as to that portion that was accepted by the Committee.

MR. VILLEGAS. The portion accepted by the Committee is the deletion of the phrase "voting stock
or controlling interest."

This intent is even more apparent in the Implementing Rules and Regulations (IRR) of the FIA. In
defining a "Philippine national," Section 1(b) of the IRR of the FIA categorically states that for the
purposes of determining the nationality of a corporation the control test should be applied.72
The cardinal rule in the interpretation of laws is to ascertain and give effect to the intention of the
legislator.73Therefore, the legislative intent to apply the control test in the determination of nationality
must be given effect.

Significantly, in applying the control test, the SEC has consistently ruled that the determination of the
nationality of the corporation must be based on the entire outstanding capital stock, which includes
both voting and non-voting shares. One such ruling can be found in an Opinion dated November 21,
1989 addressed to Atty. Reynaldo G. Geronimo, to wit:

As to the basis of computation of the 60-40 percentage nationality requirement under existing laws
(whether it should be based on the number of shares or the aggregate amount in pesos of the par
value of the shares), the following definitions of corporate terms are worth mentioning.

"The term capital stock signifies the aggregate of the shares actually subscribed". (11 Fletcher, Cyc.
Corps. (1971 Rev. Vol.) sec. 5082, citing Goodnow v. American Writing Paper Co., 73 NJ Eq. 692,
69 A 1014 aff'g 72 NJ Eq. 645, 66 A, 607).

"Capital stock means the capital subscribed (the share capital)". (Ibid., emphasis supplied).

"In its primary sense a share of stock is simply one of the proportionate integers or units, the sum of
which constitutes the capital stock of corporation. (Fletcher, sec. 5083).

The equitable interest of the shareholder in the property of the corporation is represented by the
term stock, and the extent of his interest is described by the term shares. The expression shares of
stock when qualified by words indicating number and ownership expresses the extent of the owner's
interest in the corporate property (Ibid, Sec. 5083, emphasis supplied).

Likewise, in all provisions of the Corporation Code the stockholders’ right to vote and receive
dividends is always determined and based on the "outstanding capital stock", defined as follows:

"SECTION 137. Outstanding capital stock defined. — The term "outstanding capital stock" as used
in this Code, means the total shares of stock issued to subscribers or stockholders, whether or not
fully or partially paid (as long as there is a binding subscription agreement, except treasury shares."

The computation, therefore, should be based on the total outstanding capital stock, irrespective of
the amount of the par value of the shares.

Again in SEC Opinion dated December 22, 2004 addressed to Atty. Priscilla B. Valer, the SEC
reiterated the application of the control test to the total outstanding capital stock irrespective of the
amount of the par value of shares, viz:

"Under the ‘control concept’, the nationality of the corporation depends on the nationality of the
controlling stockholders. In determining the nationality of a corporation under the ‘control test’, the
following ruling was adopted by the Commission:

xxxx

Hence, we confirm your view that the test for compliance with the nationality requirement is based
on the total outstanding capital stock irrespective of the amount of the par value of
shares.74 (Emphasis supplied.)
More importantly, the SEC defined "capital" as to include both voting and non-voting in the
determination of the nationality of a corporation, to wit:

In view of the foregoing, it is opined that the term "capital" denotes the sum total of the shares
subscribed and paid by the shareholders, or secured to be paid, irrespective of their nomenclature to
be issued by the corporation in the conduct of its operation. Hence, non-voting preferred shares are
considered in the computation of the 60-40% Filipino-alien equity requirement of certain economic
activities under the Constitution.75 (Emphasis supplied.)

In fact, the issue in the present case was already answered by the SEC in its Opinion dated
February 15, 1988. The opinion was issued as an answer to the query––"Would it be legal for
foreigners to own more than 40% of the common shares but not more than 40% of the total
outstanding capital stock which would include both common and non-voting preferred shares?" This
is exactly the question in this case. The SEC ruled in the affirmative and stated:

The pertinent provision of the Philippine Constitution under Article XII, Section 7, reads in part thus:

"No franchise, certificate, or any form of authorization for the operation of a public utility shall be
granted except to citizens of the Philippines, or to corporations or associations organized under the
laws of the Philippines at least sixty per centum of whose capital is owned by such citizens. . ." x x x

The issue raised on your letter zeroes in on the meaning of the word "capital" as used in the above
constitutional provision.

Anent thereto, please be informed that the term "capital" as applied to corporations, refers to the
money, property or means contributed by stockholders as the form or basis for the business or
enterprise for which the corporation was formed and generally implies that such money or property
or means have been contributed in payment for stock issued to the contributors. (United Grocers,
Ltd. v. United States F. Supp. 834, cited in 11 Fletcher, Cyc. Corp., 1986, rev. vol., sec. 5080 at 18).
As further ruled by the court, "capital of a corporation is the fund or other property, actually or
potentially in its possession, derived or to be derived from the sale by it of shares of its stock or his
exchange by it for property other than money. This fund includes not only money or other property
received by the corporation for shares of stock but all balances of purchase money, or installments,
due the corporation for shares of stock sold by it, and all unpaid subscriptions for shares." (Williams
v. Brownstein, 1F. 2d 470, cited in 11 Fletcher, Cyc. Corp., 1058 rev. vol., sec. 5080, p. 21).

The term "capital" is also used synonymously with the words "capital stock", as meaning the amount
subscribed and paid-in and upon which the corporation is to conduct its operation. (11 Fletcher, Cyc.
Corp. 1986, rev. vol., sec. 5080 at 15). And, as held by the court in Haggard v. Lexington Utilities
Co., (260 Ky 251, 84 SW 2d 84, cited in 11 Fletcher, Cyc. Corp., 1958 rev. vol., sec. 5079 at
17), "The capital stock of a corporation is the amount paid-in by its stockholders in money, property
or services with which it is to conduct its business, and it is immaterial how the stock is classified,
whether as common or preferred."

The Commission, in a previous opinion, ruled that the term ‘capital’ denotes the sum total of the
shares subscribed and paid by the shareholders or served to be paid, irrespective of their
nomenclature. (Letter to Supreme Technotronics Corporation, dated April 14, 1987).

Hence, your query is answered in the affirmative.76 (Emphasis supplied.)

This opinion was reiterated in another Opinion dated July 16, 1996 addressed to Mr. Mitsuhiro
Otsuki:
Relative to the second issue, "In the absence of special provisions the holders of preferred stock in a
corporation are in precisely the same position, both with respect to the corporation itself and with
respect to the creditors of the corporation, as the holders of common stock, except only that they are
entitled to receive dividends on their shares, to the extent guaranteed or agreed upon, before any
dividends can be paid to the holders of common stock. x x x. Accordingly, as a general rule, they are
considered in the computation of the 60-40% Filipino-alien equity percentage requirement, unless
the law covering the type of business to be undertaken provides otherwise. (Emphasis supplied.)

In Opinion No. 32-03 dated June 2, 2003 addressed to Commissioner Armi Jane R. Borje, the SEC
likewise held that the word "capital" as used in Sec. 11, Art. XII of the 1987 Constitution refers to the
entire outstanding capital stock, regardless of its share classification, viz:

Please note that Article XII, Section 11 of the Philippine Constitution provides:

"No franchise, certificate, or any other form of authorization for the operation of a public utility shall
be granted except to citizens of the Philippines or to corporations or associations organized under
the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens…"

The legal capacity of the corporation to acquire franchise, certificate, or authority for the operation of
a public utility is regulated by the aforequoted Constitutional provision, which requires that at least
sixty per centum (60%) of the capital of such corporation be owned by citizens of the Philippines.
However, such provision does not qualify whether the required ownership of "capital" shall be that of
the voting or non-voting, common or preferred. Hence, it should be interpreted to refer to the sum
total of the outstanding capital stock, irrespective of the nomenclature or classification as common,
preferred, voting or non-voting. (Emphasis supplied.)

In the same way, the SEC has also adopted the same interpretation of the word "capital" to various
laws or statutes imposing a minimum on Filipino ownership. In an Opinion dated November 11, 1988
addressed to Mr. Nito Doria, which involved Executive Order No. 226, otherwise known as the
Omnibus Investments Code of 1987, the SEC stated:

For permitted and permissible investments, the maximum percentage of control allowable to foreign
investors is found in Sections 46 and 47 of the Omnibus Investments Code of 1987, copy enclosed.
In relation thereto, "Outstanding capital stock" refers to the total shares issued to subscribers or
stockholders, whether or not fully or partially paid, except treasury shares. (Section 137, Corporation
Code of the Philippines), and it is immaterial how the stock is classified, whether as common or
preferred, (SEC Opinions, dated June 13, 1988, April 14, 1987, and February 15, 1988).

Again, in an Opinion dated October 16, 1981 addressed to Atty. Jose A. Bañez which involved
Republic Act No. 1180, otherwise known as the Retail Trade Nationalization Law, the SEC opined
that the issuance of preferred shares to a foreigner will disqualify the corporation from engaging in
retail trade, because the law provides that "no association, partnership, or corporation the capital of
which is not wholly owned by citizens of the Philippines, shall engage directly or indirectly in the
retail business."77 The SEC held:

Your client will lose its character of being one hundred percent (100%) Filipino-owned if said
Japanese entity is allowed to subscribe to its preferred shares. The issuance of shares to an alien
will reduce the ownership of Filipino citizens to less than the required percentage based on the
outstanding capital stock of the corporation, regardless of the fact that said shares are non-voting
and non-convertible.
Please be advised that under the Retail Trade Nationalization Law (R.A. 1180), "No association,
partnership, or corporation the capital of which is not wholly owned by citizens of the Philippines,
shall engage directly or indirectly in the retail business."

Notably, the foregoing Opinion was rendered before the promulgation of the 1987 Constitution.
Thus, it must be assumed that the framers of the Constitution were aware of the administrative
interpretation of the word "capital" and that they also adhered to the same interpretation when they
re-adopted it in the 1987 Constitution from the 1935 and 1973 Constitutions. As held in Laxamana v.
Baltazar, "[w]here a statute has received a contemporaneous and practical interpretation and the
statute as interpreted is re-enacted, the practical interpretation is accorded greater weight than it
ordinarily receives, and is regarded as presumptively the correct interpretation of the law. The rule
here is based upon the theory that the legislature is acquainted with the contemporaneous
interpretation of a statute, especially when made by an administrative body or executive officers
charged with the duty of administering or enforcing the law, and therefore impliedly adopts the
interpretation upon re-enactment."78

Without a doubt, the SEC’s definition of the word "capital" has been consistently applied to include
the entire outstanding capital stock of a corporation, irregardless of whether it is common or
preferred or voting or non-voting.

This contemporaneous construction of the SEC is entitled to great respect and weight especially
since it is consistent with the Constitutional Commission’s intention to use the term "capital" as
applying to all shares, whether common or preferred. It is well to reiterate the principle of
contemporaneous construction and the reason why it is entitled to great respect, viz:

x x x As far back as In re Allen, (2 Phil. 630) a 1903 decision, Justice McDonough, as ponente, cited
this excerpt from the leading American case of Pennoyer v. McConnaughy, decided in 1891: "The
principle that the contemporaneous construction of a statute by the executive officers of the
government, whose duty it is to execute it, is entitled to great respect, and should ordinarily control
the construction of the statute by the courts, is so firmly embedded in our jurisprudence that no
authorities need be cited to support it.’ (Ibid, 640. Pennoyer v. McConnaughly is cited in 140 US 1.
The excerpt is on p. 23 thereof. Cf. Government v. Municipality of Binalonan, 32 Phil, 634 [1915])
There was a paraphrase by Justice Malcolm of such a pronouncement in Molina v. Rafferty, (37 Phil.
545) a 1918 decision:" Courts will and should respect the contemporaneous construction placed
upon a statute by the executive officers whose duty it is to enforce it, and unless such interpretation
is clearly erroneous will ordinarily be controlled thereby. (Ibid, 555) Since then, such a doctrine has
been reiterated in numerous decisions.79(Emphasis supplied.)

Similarly, the Corporation Code defines "outstanding capital stock" as the "total shares of stock
issued."80 It does not distinguish between common and preferred shares. It includes all types of
shares.

Since foreigners hold 64.27% of to the total number of PLDT’s common shares which are entitled to
select the Board of Directors, the ponencia claims foreigners will elect the majority of the Board of
Director in PLDT and, hence, have control over the company.

This is incorrect.

First of all, it has been established that the word "capital" in the phrase "corporation or associations
organized under the laws of the Philippines, at least sixty per centum of whose ‘capital’ is owned by
such citizens" under Sec. 11, Art. XII of the 1987 Constitution means both common or preferred
shares or voting or non-voting shares. This phrase is qualified by the last sentence of Sec. 11, which
reads:

x x x x The participation of foreign investors in the governing body of any public utility enterprise
shall be limited to their proportionate share in its capital, and all the executive and managing officers
of such corporation or association must be citizens of the Philippines. (Emphasis supplied.)

The aforequoted constitutional provision is unequivocal––it limits the participation of the foreign
investors in the governing body to their proportionate share in the capital of the corporation.
Participation is "the act of taking part in something."81 Accordingly, it includes the right to elect or
vote for in the election of the members of the Board of Directors. However, this right to participate in
the election is restricted by the first sentence of Sec. 11 such that their right cannot exceed their
proportionate share in the capital, i.e., 40%. In other words, the right of foreign investors to elect the
members of the Board of Directors cannot exceed the voting rights of the 40% of the common
shares, even though their ownership of common shares may exceed 40%. Thus, since they can only
vote up to 40% of the common shares of the corporation, they will never be in a position to elect
majority of the members of the Board of Directors. Consequently, control over the membership of the
Board of Directors will always be in the hands of Filipino stockholders although they actually own
less than 50% of the common shares.

Let Us apply the foregoing principles to the situation of PLDT. Granting without admitting that
foreigners own 64.27% of PLDT’s common shares and say they own 40% of the total number of
common and preferred shares, still they can only vote up to 40% of the common shares of PLDT
since their participation in the election of the Board of Directors (the governing body of the
corporation) is limited by the 40% ownership of the capital under the first sentence of Sec. 11, Art.
XII of the Constitution. The foreigners can only elect members of the Board of Directors based on
their 40% ownership of the common shares and their directors will only constitute the minority. In no
instance can the foreigners obtain the majority seats in the Board of Directors.

Further, the 2010 General Information Sheet (GIS) of PLDT reveals that among the thirteen (13)
members of the Board of Directors, only two (2) are foreigners. It also reveals that the foreign
investors only own 13.71% of the capital of PLDT.82

Obviously, the nomination and election committee of PLDT uses the 40% cap on the foreign
ownership of the capital which explains why the foreigners only have two (2) members in the Board
of Directors. It is apparent that the 64.27% ownership by foreigners of the common shares cannot be
used to elect the majority of the Board of Directors. The fact that the proportionate share of the
foreigners in the capital (voting and non-voting shares or common and preferred shares) is even less
than 40%, then they are only entitled to voting rights equivalent to the said proportionate share in the
capital and in the process elect only a smaller number of directors. This is the reality in the instant
case. Hence, the majority control of Filipinos over the management of PLDT is, at all times, assured.

This intent to limit the participation of the foreign investors in the governing body of the corporation
was solidified in Commonwealth Act No. 108, otherwise known as the Anti-Dummy Law. Sec. 2-A of
the aforementioned law, as amended, provides in part:

x x x Provided, finally, that the election of aliens as members of the Board of Directors of governing
body of corporations or associations engaging in partially nationalized activity shall be allowed in
proportion to their allowable participation or share in the capital of such entities.

The view that the definition of the word "capital" is limited to common or voting shares alone would
certainly have the effect of removing the 60-40% nationality requirement on the non-voting shares.
This would then give rise to a situation wherein foreign interest would not really be limited to only
40% but may even extend beyond that because foreigners could also own the entire 100% of the
preferred or non-voting shares. As a result, Filipinos will no longer have effective ownership of the
corporate assets which may include lands. This is because the actual Filipino equity constitutes only
a minority of the entire outstanding capital stock. Therefore, the company would then be technically
owned by foreigners since the actual ownership of at least 60% of the entire outstanding capital
stock would be left to the hands of the foreigners. Allowing this to happen would violate and
circumvent the purpose for which the provision in the Constitution was created.83

This situation was the subject matter of the Opinion dated December 27, 1995 addressed to Mr.
George Lavidia where the SEC opined that for the computation of the required minimum 60%
Filipino ownership in a land owning corporation, both voting and preferred non-voting shares must
be included, to wit:

The [law] does not qualify whether the required ownership of "capital stock" are voting or non-voting.
Hence, it should be interpreted to mean the sum total of the capital stock subscribed, irrespective of
their nomenclature and whether or not they are voting or non-voting. The use of the phrase "capital
stock belongs" connotes that in order to comply with the Filipino nationality requirement for land
ownership, it is necessary that the criterion of "beneficial ownership" should be met, not merely the
control of the corporation.

To construe the 60-40% equity requirement is merely based on the voting shares, disregarding the
preferred non-voting shares, not on the total outstanding subscribed capital stock, would give rise to
a situation where the actual foreign interest would not really be only 40% but may extend beyond
that because they could also own even the entire preferred non-voting shares. In this situation,
Filipinos may have the control in the operation of the corporation by way of voting rights, but have no
effective ownership of the corporate assets which include lands, because the actual Filipino equity
constitutes only a minority of the entire outstanding capital stock. Therefore, in essence, the
company, although controlled by Filipinos, is beneficially owned by foreigners since the actual
ownership of at least 60% of the entire outstanding capital stocks would be in the hands of
foreigners. Allowing this situation would open the floodgates to circumvention of the intent of the law
to make the Filipinos the principal beneficiaries in the ownership of Philippine alienable lands.

xxxx

Thus, for purpose of "land ownership", non-voting preferred shares should be included in the
computation of the statutory 60-40% Filipino-alien equity requirement. To rule otherwise would result
in the emergence of foreign beneficial ownership of land, thereby defeating the purpose of the law.
On the other hand, to view the equity ratio as determined on the basis of the entire outstanding
capital stock would be to uphold the unequivocal purpose of the above-cited law of ensuring Filipino
rightful domination of land ownership. (Emphasis supplied.)

Clearly, applying the ponencia’s definition of the word "capital" will give rise to a greater anomaly
because it will result in the foreigner’s obtaining beneficial ownership over the corporation, which is
contrary to the provisions of the Constitution; whereas interpreting "capital" to include both voting
and non-voting shares will result in giving both legal and beneficial ownership of the corporation to
the Filipinos.

In the event that the word "capital" is construed as limited to common or voting shares only, it should
not have any retroactive effect. Reliance in good faith on the opinions issued by the SEC, the
regulating body in charged with the duty to enforce the nationality required by the Constitution,
should not prejudice any one, especially not the foreign investors. Giving such interpretation
retroactive effect is tantamount to violation of due process and would impact negatively on the
various foreign investments already present in the country. Accordingly, such construction should
only be applied prospectively.

In sum, the Constitution requires that 60% of the capital be owned by Filipinos. It further requires
that the foreign ownership of capital be limited to 40%, as well as its participation in the governing
body of the public utility corporation be limited to its proportionate share in the capital which cannot
exceed 40% thereof. As a result, control over the Board of Directors and full beneficial ownership of
60% of the capital stock of the corporation are secured in the hands of the Filipinos.

I, therefore, vote to DISMISS the petition.

PRESBITERO J. VELASCO, JR.

Associate Justice

Footnotes

1 Rollo, p. 16.

2 Id.

3 Id. at 899.

4
Id. at 900.

5 Id.

6 See Cojuangco v. Sandiganbayan, G.R. No. 183278, April 24, 2009, 586 SCRA 790.

7 Rollo, p. 18.

8 Id. at 900-901.

9 Id. at 902.

10 Id. at 902-903.

11 Id. at 902.

12 Id. at 17.

13 Id. at 903.

14 Id. at 41.

15 Id. at 15.
16 Rule 3, Sec. 2.

17 G.R. No. 140835, August 14, 2000, 337 SCRA 733, 741. (Emphasis supplied.)

18Province of Camarines Sur v. Court of Appeals, G.R. No. 175064, September 18, 2009,
600 SCRA 569, 585.

19 Rule 63, Sec. 2.

20 Degala v. Reyes, No. L-2402, November 29, 1950.

21 Tambunting, Jr. v. Sumabat, G.R. No. 144101, September 16, 2005, 470 SCRA 92, 96.

22 Rollo, pp. 11-12.

23 Ponencia, p. 10.

24 G.R. No. 107921, July 1, 1993, 224 SCRA 236, 243.

25 Perez v. City Mayor of Cabanatuan, No. L-16786, October 31, 1961.

26 Ferrer, Jr. v. Roco, Jr., G.R. No. 174129, July 5, 2010.

27 Montes v. Civil Service Board of Appeals, No. L-10759, May 20, 1957.

28 Republic Act No. 8799, Sec. 5 provides:

Section 5. Powers and Functions of the Commission.– 5.1. The commission shall act
with transparency and shall have the powers and functions provided by this code,
Presidential Decree No. 902-A, the Corporation Code, the Investment Houses law,
the Financing Company Act and other existing laws. Pursuant thereto the
Commission shall have, among others, the following powers and functions:

(a) Have jurisdiction and supervision over all corporations, partnership or

associations who are the grantees of primary franchises and/or a license or a permit
issued by the Government;

xxxx

(c) Approve, reject, suspend, revoke or require amendments to registration

statements, and registration and licensing applications;

(d) Regulate, investigate or supervise the activities of persons to ensure compliance;

xxxx

(f) Impose sanctions for the violation of laws and rules, regulations and orders, and
issued pursuant thereto;
 (g) Prepare, approve, amend or repeal rules, regulations and orders, and issue
opinions and provide guidance on and supervise compliance with such rules,
regulation and orders;

xxxx

(i) Issue cease and desist orders to prevent fraud or injury to the investing public;

xxxx

(m) Suspend, or revoke, after proper notice and hearing the franchise or certificate of
registration of corporations, partnership or associations, upon any of the grounds
provided by law; and

(n) Exercise such other powers as may be provided by law as well as those which
may be implied from, or which are necessary or incidental to the carrying out of, the
express powers granted the Commission to achieve the objectives and purposes of
these laws.

29National Power Corporation v. Province of Quezon and Municipality of Pagbilao, G.R. No.
171586, January 25, 2010.

30See Heirs of Juanita Padilla v. Magdua, G.R. No. 176858, September 15, 2010, 630 SCRA
573, 586.

31Batas Pambansa Blg. 129, Sec. 19. Jurisdiction in civil cases. – Regional Trial Courts shall
exercise exclusive original jurisdiction:

(1) In all civil actions in which the subject of the litigation is incapable of pecuniary
estimation;

xxxx

32 Chong v. Dela Cruz, G.R. No. 184948, July 21, 2009, 593 SCRA 311, 314; citing Talento
v. Escalada, G.R. No. 180884, June 27, 2008, 556 SCRA 491.

See Chamber of Real Estate and Builders Associations, Inc. (CREBA) v. Secretary of
33

Agrarian Reform, G.R. No. 183409, June 18, 2010, 621 SCRA 295.

34 G.R. Nos. 99289-90, January 27, 1993, 217 SCRA 633, 651-652.

35 G.R. No. 157360, June 9, 2003.

Pimentel v. Ermita, G.R. No. 164978, October 13, 2005, 472 SCRA 587, 593; Tolentino v.
36

Commission on Elections, G.R. No. 148334, January 21, 2004, 420 SCRA 438, 451.

37 61 Phil. 523 (1935).

38 4 Wall., 158, 161; 18 Law. ed., 354.

39 Rule 2, Sec. 5. Joinder of causes of action.

A party may in one pleading assert, in the alternative or otherwise, as many causes
of action as he may have against an opposing party, subject to the following
conditions:

xxxx

(b) The joinder shall not include special civil actions or actions governed by special
rules; (Emphasis supplied.)

40 Art. III, Sec. 1.

41
J.G. Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer 27-28
(2006).

42 G.R. No. 124293, January 31, 2005, 450 SCRA 169, 192.

43La Bugal-B’laan Tribal Association Inc. v. DENR, G.R. No. 127882, December 1, 2004,
445 SCRA 1.

Metropolitan Bank & Trust Company v. Alejo, G.R. No. 141970, September 10, 2001, 364
44

SCRA 812, 820; citations omitted.

45 Rule 3, Sec. 7.

46
G.R. No. 153059, August 14, 2007, 530 SCRA 58.

47 G.R. No. 84404, October 18, 1990, 190 SCRA 717, 729.

48 Ponencia, p. 17.

49 Id. at 20.

50 Records of the Constitutional Commission, Volume III, p. 269.

51 Referring to Sections 2 and 10, Article XII of the 1987 Constitution.

52 Records of the Constitutional Commission, Volume III, pp. 326-327.

53 Id. at 357.

54 Id. at 360.

55 Id. at 582.

56 Section 2, Article XII, 1987 Constitution:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife,
 flora and fauna, and other natural resources are owned by the State. With the
exception of agricultural lands, all other natural resources shall not be alienated. The
exploration, development, and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake such activities,
or it may enter into co-production, joint venture, or production-sharing agreements
with Filipino citizens, or corporations or associations at least sixty per centum of
whose capital is owned by such citizens. x x x x (Emphasis supplied.)

57 Section 10, Article XII, 1987 Constitution:

Section 10. The Congress shall, upon recommendation of the economic and
planning agency, when the national interest dictates, reserve to citizens of the
Philippines or to corporations or associations at least sixty per centum of whose
capital is owned by such citizens, or such higher percentage as Congress may
prescribe, certain areas of investments. The Congress shall enact measures that will
encourage the formation and operation of enterprises whose capital is wholly owned
by Filipinos. (Emphasis supplied.)

58 Records of the Constitutional Commission, Volume III, p. 360.

59 Id. at 364.

60Sarmiento v. Mison, G.R. No. 79974, December 17, 1987, 156 SCRA 549, 552 citing Gold
Creek Mining Corp. v. Rodriguez, 66 Phil. 259, 264.

61 Aquino, Jr. v. Enrile, No. L-35546, September 17, 1974, 59 SCRA 183.

Republic Act No. 7042 entitled "AN ACT TO PROMOTE FOREIGN INVESTMENTS,
62

PRESCRIBE THE PROCEDURES FOR REGISTERING ENTERPRISES DOING

BUSINESS IN THE PHILIPPINES AND FOR OTHER PURPOSES."

Transcript of the January 15, 1991, 4th Regular Session, 8th CRP, Bill on Second
63

Reading, Senate, pp. 11-12.

64 Teehankee v. Rovias, 75 Phil. 634 (1945).

65 Batas Pambansa Blg. 68 entitled "THE CORPORATION CODE OF THE PHILIPPINES."

66 Castillo v. Balinghasay, G.R. No. 150976, October 18, 2004.

67 National Waterworks and Sewerage Authority, No. L-21911, September 29, 1967.

68 Opinion No. 018, s. 1989, January 19, 1989, Department of Justice.

69 Ponencia, pp. 30-31.

70SEC Opinion dated November 6, 1989 addressed to Attys. Barbara Anne C. Migollos and
Peter Dunnely A. Barot; SEC Opinion dated December 14, 1989 addressed to Atty. Maurice
C. Nubla; SEC Opinion dated January 2, 1990 addressed to Atty. Eduardo F. Hernandez;
SEC Opinion dated May 30, 1990 addressed to Gold Fields Philippines Corporation; SEC
Opinion dated September 21, 1990 addressed to Carag, Caballes, Jamora, Rodriguez &
Somera Law Offices; SEC Opinion dated March 23, 1993 addressed to Mr. Francis F. How;
SEC Opinion dated April 14, 1993 addressed to Director Angeles T. Wong of the Philippine
Overseas Employment Administration; SEC Opinion dated November 23, 1993 addressed to
Mssrs. Dominador Almeda and Renato S. Calma; SEC Opinion dated December 7, 1993
addressed to Roco Bunag Kapunan Migallos & Jardaleza; SEC Opinion No. 49-04 dated
December 22, 2004 addressed to Atty. Priscilla B. Valer; SEC Opinion No. 17-07 dated
September 27, 2007 addressed to Mr. Reynaldo G. David; SEC Opinion No. 18-07 dated
November 28, 2007 addressed to Mr. Rafael C. Bueno, Jr.; SEC-OGC Opinion No. 20-07
dated November 28, 2007 addressed to Atty. Amado M. Santiago, Jr., SEC-OGC Opinion
No. 21-07 dated November 28, 2007 addressed to Atty. Navato Jr.; SEC-OGC Opinion No.
03-08 dated January 15, 2008 addressed to Attys. Ruby Rose J. Yusi and Rudyard S.
Arbolado; SEC-OGC Opinion No. 09-09 dated April 28, 2009 addressed to Villaraza Cruz
Marcelo Angangco; SEC-OGC Opinion No. 08-10 dated February 8, 2010 addressed to Mr.
Teodoro B. Quijano; SEC-OGC Opinion No. 23-10 dated August 18, 2010 addressed to
Attys. Teodulo G. San Juan, Jr. and Erdelyn C. Go.

71 Deliberations of the Bicameral Conference Committee, May 21, 1991, pp. 3-5.

72 Section 1(b), Implementing Rules and Regulations of the Foreign Investments Act of 1991:

b. "Philippine national" shall mean a citizen of the Philippines or a domestic

partnership or association wholly owned by the citizens of the Philippines; or a
corporation organized under the laws of the Philippines of which at least sixty percent
[60%] of the capital stock outstanding and entitled to vote is owned and held by
citizens of the Philippines; or a trustee of funds for pension or other employee
retirement or separation benefits, where the trustee is a Philippine national and at
least sixty percent [60%] of the fund will accrue to the benefit of the Philippine
nationals; Provided, that where a corporation its non-Filipino stockholders own stocks
in a Securities and Exchange Commission [SEC] registered enterprise, at least sixty
percent [60%] of the capital stock outstanding and entitled to vote of both
corporations must be owned and held by citizens of the Philippines and at least sixty
percent [60%] of the members of the Board of Directors of each of both corporation
must be citizens of the Philippines, in order that the corporation shall be considered a
Philippine national. The control test shall be applied for this purpose. (Emphasis
supplied.)

73 Roldan v. Villaroman, No. L-46825, October 18, 1939.

74See also SEC Opinion No. 18-07 dated November 28, 2007 addressed to Mr. Rafael C.
Bueno, Jr.; SEC-OGC Opinion No. 03-08 dated January 15, 2008 addressed to Attys. Ruby
Rose J. Yusi and Rudyard S. Arbolado; and SEC-OGC Opinion No. 23-10 dated August 18,
2010 addressed to Attys. Teodulo G. San Juan, Jr. and Erdelyn C. Go.

75 SEC Opinion dated April 14, 1987.

76 SEC Opinion dated February 15, 1988.

77 Republic Act No. 1180, Sec. 1.

78 No. L-5955, September 19, 1952.

 79Philippine Global Communications, Inc. v. Relova, No. L-60548, November 10, 1986; citing
Philippine Association of Free Labor Unions [PAFLU] v. Bureau of Labor Relations, August
21, 1976, 72 SCRA 396, 402.

80 Sec. 137.

81 Black’s Law Dictionary (9th ed. 2009).

<http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_(as%20of%207.2.10)
82

_final.pdf> (last visited June 23, 2011).

83 See SEC Opinion dated December 27, 1995 addressed to Mr. George Lavidia.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

ABAD, J.:

In 1928, the legislature enacted Act 3436, granting Philippine Long Distance Telephone Company
(PLDT) a franchise to provide telecommunications services across the country. Forty years later in
1969, General Telephone and Electronics Corporation, an American company and major PLDT
stockholder, sold 26% of PLDT’s equity to the Philippine Telecommunications Investment
Corporation (PTIC).

Subsequently, PTIC assigned 46% of its equity or 111,415 shares of stock to Prime Holdings, Inc. In
1986, the Presidential Commission on Good Government sequestered these shares. Eventually, the
Court declared these as properties of the Republic of the Philippines.

In 1999, First Pacific, a Bermuda-registered and Hongkong-based investment firm, acquired the
remaining 54% of PTIC’s equity in PLDT.

In 2006, the government’s Inter-agency Privatization Council offered to auction the 46% PTIC equity
in PLDT that the Court adjudged to the Republic. Parallax Venture Fund XXVII won with a bid of
₱25.2 billion or US$510 million. First Pacific announced that it would exercise its right of first refusal
and buy those shares by matching Parallax’s bid. In 2007, First Pacific, through its subsidiary, Metro
Pacific Assets Holdings, Inc., entered into a Conditional Sale and Purchase Agreement with the
national government involving the 46% PTIC equity for ₱25.2 billion or US$510 million.

In this petition for prohibition, injunction, declaratory relief, and declaration of nullity of sale, petitioner
Wilson P. Gamboa, a PLDT stockholder, seeks to annul the sale of the 46% PTIC equity or 111,415
shares of stock to Metro Pacific on the ground that it violates Section 11, Article XII of the 1987
Constitution which limits foreign ownership of a public utility company to 40% of its capital. Gamboa
claims that since PTIC is a PLDT stockholder, the sale of the 46% of its equity is actually an indirect
sale of 6.3% PLDT equity or 12 million shares of stock. This would increase First Pacific’s equity in
PLDT from 30.7% to 37%, and concomitantly increase the common shareholdings of foreigners in
PLDT to about 64.27%.
The action presents two primordial issues:

1. Whether or not the Court can hear and decide Gamboa’s petition for prohibition,
injunction, declaratory relief, and declaration of nullity of sale; and

2. Whether or not Metro Pacific’s acquisition of 46% of PTIC’s equity violates the
constitutional limit on foreign ownership of the capital of PLDT, a public utility company,
provided under Section 11, Article XII of the 1987 Constitution.

One. The objection to the idea of the Court hearing and deciding Gamboa’s action seems to have
some basis in the rules. Under Section 1, Rule 56 of the Rules of Court, only the following cases
may be filed originally in the Supreme Court:

Sec. 1. Original cases cognizable.—Only petitions for certiorari, prohibition, mandamus, quo
warranto, habeas corpus, disciplinary proceedings against members of the judiciary and attorneys,
and cases affecting ambassadors, other public ministers and consuls may be filed originally in the
Supreme Court.

Strictly speaking, Gamboa actions for injunction, declaratory relief, and declaration of nullity of sale
are not among the cases that can be initiated before the Supreme Court. Those actions belong to
some other tribunal.

And, although the Court has original jurisdiction in prohibition cases, the Court shares this authority
with the Court of Appeals and the Regional Trial Courts. But this concurrence of jurisdiction does not
give the parties absolute and unrestrained freedom of choice on which court the remedy will be
sought. They must observe the hierarchy of courts.1 As a rule, the Supreme Court will not entertain
direct resort to it unless the remedy desired cannot be obtained in other tribunals. Only exceptional
and compelling circumstances such as cases of national interest and of serious implications justify
direct resort to the Supreme Court for the extraordinary remedy of writ of certiorari, prohibition, or
mandamus.2

The majority of the Court of course suggests that although Gamboa entitles his actions as ones for
injunction, declaratory relief, and declaration of nullity of sale, what controls the nature of such
actions are the allegations of his petition. And a valid special civil action for mandamus can be made
out of those allegations since respondent Secretary of Finance, his undersecretary, and respondent
Chairman of the Securities and Exchange Commission are the officials who appear to have the duty
in law to implement the foreign ownership restriction that the Constitution commands.3

To a certain extent, I agree with the position that the majority of my colleagues takes on this
procedural issue. I believe that a case can be made for giving due course to Gamboa’s action.
Indeed, there are in his actions compelling reasons to relax the doctrine of hierarchy of courts. The
need to address the important question of defining the constitutional limit on foreign ownership of
public utilities under Section 11, Article XII of the 1987 Constitution, a bedrock policy adopted by the
Filipino people, is certainly a matter of serious national interest. Such policy is intended to develop a
self-reliant and independent national economy effectively controlled by Filipino entrepreneurs.

Indeed, as the Court said in Espina v. Zamora,4 the provisions of Article XII of the 1987 Constitution
lay down the ideals of economic nationalism. One of these is the Filipinization of public utilities under
Section 11 which recognizes the very strategic position of public utilities both in the national
economy and for national security.5 The participation of foreign capital is encouraged since the
establishment and operation of public utilities may require the investment of substantial capital that
Filipino citizens could possibly not afford. But at the same time, the Constitution wants to limit foreign
involvement to prevent them from assuming control of public utilities which may be inimical to
national interest.6

Two. Still, the question is whether it is for the Court to decide in this case the shape and substance
of what the Constitution meant when it restricted the size of foreign ownership of the capital of public
utility corporations provided for in Section 11, Article XII of the 1987 Constitution which reads:

Section 11. No franchise, certificate, or any other form of authorization for the operation of a public
utility shall be granted except to citizens of the Philippines or to corporations or associations
organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by
such citizens; x x x.

Gamboa contends that the constitutional limit on foreign ownership in public utilities should be based
on the ownership of common or voting shares since it is through voting that stockholders are able to
have control over a corporation. Preferred or non-voting shares should be excluded from the
reckoning.

But this interpretation, adopted by the majority, places on the Court the authority to define and
interpret the meaning of "capital" in section 11. I believe, however, that such authority should be for
Congress to exercise since it partakes of policy making founded on a general principle laid down by
the fundamental law. The capital restriction written in the constitution lacks sufficient details for
orderly and meaningful implementation. Indeed, in the twenty-four years that the provision has been
in the Constitution, no concrete step has been taken by any government agency to see to its actual
implementation given the absence of clear legislative guidance on how to go about it.

It has been said that a constitution is a system of fundamental laws for the governance and
administration of a nation. It prescribes the permanent framework of a system of government,
assigns to the different departments their respective powers and duties, and establishes certain fixed
principles on which the government is founded.7 But while some constitutional provisions are self-
executing, others are not.

A constitutional provision is self-executing if it fixes the nature and extent of the right conferred and
the liability imposed such that they can be determined by an examination and construction of its
terms, and there is no language indicating that the subject is referred to the legislature for action. On
the other hand, if the provision needs a supplementary or enabling legislation, it is merely a
declaration of policy and principle which is not self-executing.8

Here, the Constitution simply states that no franchise for the operation of a public utility shall be
granted to a corporation organized under Philippine laws unless at least sixty per centum of its
capital is owned by Filipino citizens.

Evidently, the Constitution fails to provide for the meaning of the term "capital," considering that the
shares of stock of a corporation vary in kinds. The usual classification depends on how profits are to
be distributed and which stockholders have the right to vote the members of the corporation’s board
of directors.

The Corporation Code does not offer much help, albeit it only confuses, since it uses the terms
"capital," "capital stock," or "outstanding capital stock" interchangeably. "Capital" refers to the
money, property, or means contributed by stockholders in the corporation and generally implies that
the same have been contributed in payment for stock issued to the stockholders.9 "Capital stock"
signifies the amount subscribed and paid-in in money, property or services.10 "Outstanding capital
stock" means the total shares of stock issued to stockholders, whether or not fully or partially paid,
except treasury shares.11

Meanwhile, the Foreign Investments Act of 1991 defines a "Philippine national" as, among others, a
corporation organized under the laws of the Philippines of which at least 60% of the capital stock
outstanding and entitled to vote is owned and held by citizens of the Philippines.12 This gives the
impression, as Justice Carpio noted, that the term "capital" refers only to controlling interest or
shares entitled to vote.13

On the other hand, government agencies such as the Securities and Exchange Commission,
institutions, and corporations (such as the Philippine National Oil Company-Energy Development
Corporation) interpret the term "capital" to include both preferred and common shares.14

Under this confusing legislative signals, the Court should not leave the matter of compliance with the
constitutional limit on foreign ownership in public utilities, a matter of transcendental importance, to
judicial legislation especially since any ruling the Court makes on the matter could have deep
economic repercussions. This is not a concern over which the Court has competence. The 1987
Constitution laid down the general framework for restricting foreign ownership of public utilities. It is
apt for Congress to build up on this framework by defining the meaning of "capital," establishing
rules for the implementation of the State policy, providing sanctions for its violation, and vesting in
the appropriate agency the responsibility for carrying out the purposes of such policy.

Parenthetically, there have been several occasions in the past where Congress provided
supplementary or enabling legislation for constitutional provisions that are not self-executing. To
name just some: the Comprehensive Agrarian Reform Law of 1988,15 the Indigenous Peoples Rights
Act of 1997,16 the Local Government Code of 1991,17 the Anti-Graft and Corrupt Practices Act,18 the
Speedy Trial Act of 1998,19 the Overseas Absentee Voting Act of 2003,20 the Party-List System
Act,21 the Paternity Leave Act of 1996,22 and the Solo Parents' Welfare Act of 2000.23

Based on the foregoing, I vote to DENY the petition on the ground that the constitutional limit on
foreign ownership in public utilities under Section 11, Article XII of the 1987 Constitution is not a self-
executing provision and requires an implementing legislation for its enforcement.

ROBERTO A. ABAD
Associate Justice

Footnotes

1 Fortich v. Corona, G.R. No. 131457, April 24, 1998, 289 SCRA 624, 645.

2Springfield Development Corporation, Inc. v. Presiding Judge, RTC, Misamis Oriental, Br.
40, Cagayan de Oro City, G.R. No. 142628, February 6, 2007, 514 SCRA 326, 342-343;
Fortich v. Corona, id.

3 Decision, p. 10.

4 G.R. No. 143855, September 21, 2010.

5Bernas, Joaquin G., Foreign Relations in Constitutional Law, 1995 Ed., p. 87 citing Smith,
Bell and Co. v. Natividad, 40 Phil 136, 148 (1919); Luzon Stevedoring Corporation v. Anti-
Dummy Board, 46 SCRA 474, 490 (1972); De Leon, Hector S., Philippine Constitutional Law
(Principles and Cases), 2004 Ed., Vol. 2, p. 940.

6De Leon, Hector S., Philippine Constitutional Law (Principles and Cases), 2004 Ed., Vol. 2,
p. 946.

7Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156, February
3, 1997, 267 SCRA 408, 430.

8 Id. at 431.

9
Agpalo, Ruben E., Comments on the Corporation Code of the Philippines, 2001 Ed., p. 50.

10 Id. at 51.

11 Section 137. The Corporation Code.

12 Sec. 3. Definitions. - As used in this Act:

a. The term "Philippine national" shall mean a citizen of the Philippines; of a domestic
partnership or association wholly owned by citizens of the Philippines; or a
corporation organized under the laws of the Philippines of which at least sixty percent
(60%) of the capital stock outstanding and entitled to vote is owned and held by
citizens of the Philippines; or a corporation organized abroad and registered as doing
business in the Philippines under the Corporation Code of which one hundred
percent (100%) of the capital stock outstanding and entitled to vote is wholly owned
by Filipinos or a trustee of funds for pension or other employee retirement or
separation benefits, where the trustee is a Philippine national and at least sixty
percent (60%) of the fund will accrue to the benefit of Philippine nationals: Provided,
That where a corporation and its non-Filipino stockholders own stocks in a Securities
and Exchange Commission (SEC) registered enterprise, at least sixty percent (60%)
of the capital stock outstanding and entitled to vote of each of both corporations must
be owned and held by citizens of the Philippines and at least sixty percent (60%) of
the members of the Board of Directors of each of both corporations must be citizens
of the Philippines, in order that the corporation, shall be considered a "Philippine
national." (As amended by Republic Act 8179)

13 Decision, pp. 25-26.

14 Id. at 17.

15 Section 21, Article II.

16 Section 22, Article II.

17 Section 25, Article II.

18 Section 27, Article II.

19 Section 16, Article III.

20 Section 2, Article V.

21 Section 5, Article VI.

22 Section 3, Article XIII.

23 Id.
Republic Act No. 8491 February 12, 1998

AN ACT PRESCRIBING THE CODE OF THE NATIONAL FLAG, ANTHEM, MOTTO, COAT-OF-
ARMS AND OTHER HERALDIC ITEMS AND DEVICES OF THE PHILIPPINES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled::

Section 1. Short title. – This Act shall be known as the "Flag and Heraldic Code of the
Philippines."

Section 2. Declaration of policy. – Reverence and respect shall at all times be accorded the flag,
the anthem, and other national symbols which embody the national ideals and traditions and which
express the principles of sovereignty and national solidarity. The heraldic items and devices shall
seek to manifest the national virtues and to inculcate in the minds and hearts of our people a just
pride in their native land, fitting respect and affection for the national flag and anthem, and the proper
use of the national motto, coat-of-arms and other heraldic items and devices.

Section 3. Definition of terms. – Whenever used in this Act, the term:

a) "Military" shall mean all branches of the Armed Forces of the Philippines including the
Philippine National Police, the Bureau of Jail Management and Penology, and the Bureau of
Fire Protection;

b) "Festoon" shall mean to hang in a curved shape between two points as a decoration;

c) "Flag" shall mean the Philippine National Flag, unless stated otherwise

d) "Fly" shall mean the part of the flag outside the hoist or length;

e) "Symbol" shall mean any conventional sign which reveals man's achievement and
heroism (for orders and decorations), identification, authority and a sign of dignity (for coat-
of-arms, logo and insignia);

f) "Half-Mast" shall mean lowering the flag to one-half the distance between the top and
bottom of the staff;

g) "Hoist" shall mean the part of the flag nearest the staff or the canvass to which the halyard
is attached;

h) "Inclement Weather" shall mean that a typhoon signal is raised in the locality;

i) "National Anthem" shall mean the Philippine National Anthem;

j) "Official Residences" shall mean Malacañang, and other government-owned structures

where the President resides, and other structures occupied by the Philippine Consulate or
Embassies abroad;

k) "Places of Frivolity" shall mean places of hilarity marked by or providing boisterous

merriment or recreation; and
 l) "Institute" shall mean the National Historical Institute.

CHAPTER I
THE NATIONAL FLAG

A. Design of the National Flag

Section. 4. The flag of the Philippines shall be blue, white and red with an eight-rayed golden-yellow
sun and three five-pointed stars, as consecrated and honored by the people.

B. Hoisting and Display of the National Flag

Section 5. The flag shall be displayed in all public buildings, official residences, public plazas, and
institutions of learning every day throughout the year.

Section 6. The flag shall be permanently hoisted, day and night throughout the year, in front of the
following: at Malacañang Palace; the Congress of the Philippines building; Supreme Court building;
the Rizal Monument in Luneta, Manila; Aguinaldo Shrine in Kawit, Cavite; Barasoain Shrine in
Malolos, Bulacan; the Tomb of the Unknown Soldier, Libingan ng mga Bayani; Musoleo de los
Beteranos dela Revolucion; all International Ports of Entry and all other places as may be
designated by the Institute.

The flag shall be properly illuminated at night.

Section 7. The flag shall also be displayed in private buildings and residences or raised in the open
on flag-staffs in front of said buildings every April 9 (Araw ng Kagitingan); May 1 (Labor Day); May
28 (National Flag Day) to June 12 (Independence Day); last Sunday of August (National Heroes
Day); November 30 (Bonifacio Day); and December 30 (Rizal Day); and on such other days as may
be declared by the President and/or local chief executives.

The flag may also be displayed throughout the year in private buildings or offices or raised in the
open on flag-staffs in front of private buildings: Provided, That they observe flag-raising ceremonies
in accordance with the rules and regulations to be issued by the Office of the President.

Section 8. All government agencies and instrumentalities, and local government offices,
government-owned corporations and local government units are enjoined to observe flag day with
appropriate ceremonies. Socio-civic groups, non-government organizations and the private sector
are exhorted to cooperate in making the celebrations a success.

Section 9. The flag shall be flown on merchant ships of Philippine registry of more than one
thousand (1000) gross tons and on all naval vessels.

On board naval vessels, the flag shall be displayed on the flag-staff at the stern when the ship is at
anchor. The flag shall be hoisted to the gaff at the aftermast when the ship is at sea.

Section 10. The flag, if flown from a flagpole, shall have its blue field on top in time of peace and the
red field on top in time of war; if in a hanging position, the blue field shall be to the right (left of the
observer) in time of peace, and the red field to the right (left of the observer) in time of war.

The flagpole staff must be straight and slightly tapering at the top.
Section 11. If planted on the ground, the flagpole shall be at a prominent place and shall be of such
height as would give the flag commanding position in relation to the buildings in the vicinity.

If attached to a building, the flagpole shall be on top of its roof or anchored on a sill projecting at an
angle upward.

If on a stage or platform or government office, the flag shall be at the left (facing the stage) or the left
of the office upon entering.

Section 12. When the Philippine flag is flown with another flag, the flags, if both are national flags,
must be flown on separate staffs of the same height and shall be of equal size. The Philippine flag
shall be hoisted first and lowered last.

If the other flag is not a national flag, it may be flown in the same lineyard as the Philippine flag but
below the latter and it cannot be of greater size than the Philippine flag.

Section 13. When displayed with another flag, the Philippine flag shall be on the right of the other
flag. If there is a line of other flags, the Philippine flag shall be in the middle of the line.

When carried in a parade with flags which are not national flags, the Philippine flag shall be in front
of the center of the line.

Section 14. A flag worn out through wear and tear, shall not be thrown away. It shall be solemnly
burned to avoid misuse or desecration. The flag shall be replaced immediately when it begins to
show signs of wear and tear.

Section 15. The flag shall be raised at sunrise and lowered at sunset. It shall be on the mast at the
start of official office hours, shall remain flying throughout the day.

Section 16. The flag may be displayed:

a) Inside or outside a building or on stationary flagpoles. If the flag is displayed indoors on a

flagpole, it shall be placed at the left of the observer as one enters the room;

b) From the top of a flagpole, which shall be at a prominent place or a commanding position
in relation to the surrounding buildings;

c) From a staff projecting upward from the window sill, canopy, balcony or facade of a
building;

d) In a suspended position from a rope extending from a building to pole erected away from
the building;

e) Flat against the wall vertically with the sun and stars on top; and

f) Hanging in a vertical position across a street, with the blue field pointing east, if the road is
heading south or north, or pointing north if the road is heading east or west.

The flag shall not be raised when the weather is inclement. If already raised, the flag shall not be
lowered.
Section 17. The flag shall be hoisted to the top briskly and lowered ceremoniously.

The flag shall never touch anything beneath it, such as the ground, flood, water or other objects.

After being lowered, the flag shall be handled and folded solemnly as part of the ceremony.

C. Conduct of Flag Raising Ceremony

Section 18. All government offices and educational institutions shall henceforth observe the flag-
raising ceremony every Monday morning and the flag lowering ceremony every Friday afternoon.
The ceremony shall be simple and dignified and shall include the playing or singing of the Philippine
National Anthem.

Section 19. The Office of the President upon the recommendation of the Institute shall issue rules
and regulations for the proper conduct of the flag ceremony.

Section 20. The observance of the flag ceremony in official or civic gatherings shall be simple and
dignified and shall include the playing or singing of the anthem in its original Filipino lyrics and march
tempo.

Section 21. During the flag-raising ceremony, the assembly shall stand in formation facing the flag.
At the moment the first note of the anthem is heard, everyone in the premises shall come to
attention; moving vehicles shall stop. All persons present shall place their right palms over their
chests, those with hats shall uncover; while those in military, scouting, security guard, and citizens
military training uniforms shall give the salute prescribed by their regulations, which salute shall be
completed upon the last note of the anthem.

The assembly shall sing the Philippine national anthem, accompanied by a band, if available, and at
the first note, the flag shall be raised briskly.

The same procedure shall be observed when the flag is passing in review or in parade.

Section 22. During the flag lowering, the flag shall be lowered solemnly and slowly so that the flag
shall be down the mast at the sound of the last note of the anthem. Those in the assembly shall
observe the same deportment or shall observe the same behavior as for the flag-raising ceremony.

D. Half-Mast

Section 23. The flag shall be flown at half-mast as a sign of mourning on all the buildings and places
where it is displayed, as provided for in this Act, on the day of official announcement of the death of
any of the following officials:

a) The President or a former President, for ten (10) days;

b) The Vice-President, the Chief Justice, the President of the Senate and the Speaker of the
House of Representatives, for seven (7) days; and

c) Other persons to be determined by the Institute, for any period less than seven (7) days.

The flag shall be flown at half-mast on all the buildings and places where the decedent was holding
office, on the day of death until the day of interment of an incumbent member of the Supreme Court,
the Cabinet, the Senate or the House of Representatives, and such other persons as may be
determined by the Institute.

The flag when flown at half-mast shall be first hoisted to the peak for a moment then lowered to the
half-mast position. The flag shall again be raised to the peak before it is lowered for the day.

E. Casket

Section 24. The flag may be used to cover the caskets of the honored dead of the military, veterans
of previous wars, national artists, and of civilians who have rendered distinguished service to the
nation, as may be determined by the local government unit concerned. In such cases, the flag shall
be placed such that the white triangle shall be at the head and the blue portion shall cover the right
side of the caskets. The flag shall not be lowered to the grave or allowed to touch the ground, but
shall be folded solemnly and handed over to the heirs of the deceased.

F. Pledge to the Flag

Section 25. The following shall be the Pledge of Allegiance to the Philippine flag:

Ako ay Pilipino
Buong katapatang nanunumpa
Sa watawat ng Pilipinas
At sa bansang kanyang sinasagisag
Na may dangal, katarungan at kalayaan
Na pinakikilos ng sambayanang
Maka-Diyos
Maka-tao
Makakalikasan at
Makabansa.

Such pledge shall be recited while standing with the right hand with palm open raised shoulder high.
Individuals whose faith or religious beliefs prohibit them from making such pledge must nonetheless
show full respect when the pledge is being rendered by standing at attention.

G. Flag Days

Section 26. The period from May 28 to June 12 of each year is declared as Flag Days, during which
period all offices, agencies and instrumentalities of government, business establishments,
institutions of learning and private homes are enjoined to display the flag.

H. Specifications of the National Flag

Section 27. The flag shall have the following proportions. The width of the flag, 1; the length of the
flag, 2; and the sides of the white triangle, 1.

Section 28. The technical specifications shall be as follows:

The blue color shall bear Cable No. 80173; the white color, Cable No. 80001; the red color,
Cable No. 80108; and the golden yellow, Cable No. 80068.
Section 29. In order to establish uniform criteria in the making of our national flag and to guarantee
its durability by the use of quality materials, the following standards and procedures shall be
observed:

a) All requisitions for the purchase of the Philippine National Flag must be based on strict
compliance with the design, color, craftsmanship and material requirements of the
Government;

b) All submitted samples of flags by accredited suppliers offered for purchase for government
use shall be evaluated as to design, color and craftsmanship specifications by the Institute,
through its Heraldry and Display Sec., which shall stamp its approval or disapproval on the
canvass reinforcement of the flag sample submitted. The samples shall be sent to the
Institute by the requisitioning office, not by the flag supplier; and

c) The Industrial Technology Development Institute (ITDI) or the Philippine Textile Research
Institute (PTRI) of the Department of Science and Technology (DOST) shall evaluate the
quality of material of all flag samples and certify whether the fabric for the blue, white, red
and golden yellow colors, including the canvas submitted, conforms to government
requirement as to quality of the material. The samples shall be sent annually to the
ITDI/PTRI by the manufacturer. The laboratory test results shall be submitted by the said
office to the Institute.

Section 30. All deliveries of the flags requisitioned by the government shall be inspected by the
requisitioning agency's internal inspector and by the Commission on Audit (COA) using the flag
stamped approved by the Institute as reference.

Section 31. In carrying out its responsibilities under Sec. 4 hereof, the Institute, COA, the ITDI/PTRI
shall prepare guidelines to be approved by the Office of the President.

Section 32. All government agencies and instrumentalities shall ensure that the requirements under
this Act with respect to the standards, requisitions and delivery of the national flag are strictly
complied with.

Section 33. All departments, agencies, offices, and instrumentalities of the government,
government-owned or controlled corporations, local government units, including barangays, shall
include in their annual budgets the necessary outlay for the purchase of the national flag.

I. Prohibited Acts

Section 34. It shall be prohibited:

a) To mutilate, deface, defile, trample on or cast contempt or commit any act or omission
casting dishonor or ridicule upon the flag or over its surface;

b) To dip the flag to any person or object by way of compliment or salute;

c) To use the flag:

1) As a drapery, festoon, tablecloth;

2) As covering for ceilings, walls, statues or other objects;

 3) As a pennant in the hood, side, back and top of motor vehicles;

4) As a staff or whip;

5) For unveiling monuments or statues; and

6) As trademarks, or for industrial, commercial or agricultural labels or designs.

d) To display the flag:

1) Under any painting or picture;

2) Horizontally face-up. It shall always be hoisted aloft and be allowed to fall freely;

3) Below any platform; or

4) In discotheques, cockpits, night and day clubs, casinos, gambling joints and
places of vice or where frivolity prevails.

e) To wear the flag in whole or in part as a costume or uniform;

f) To add any word, figure, mark, picture, design, drawings, advertisement, or imprint of any
nature on the flag;

g) To print, paint or attach representation of the flag on handkerchiefs, napkins, cushions,

and other articles of merchandise;

h) To display in public any foreign flag, except in embassies and other diplomatic
establishments, and in offices of international organizations;

i) To use, display or be part of any advertisement or infomercial; and

j) To display the flag in front of buildings or offices occupied by aliens.

CHAPTER II
THE NATIONAL ANTHEM

Section 35. The National Anthem is entitled Lupang Hinirang.

Section 36. The National Anthem shall always be sung in the national language within or without the
country. The following shall be the lyrics of the National Anthem:

Bayang magiliw,
Perlas ng Silanganan
Alab ng puso,
Sa Dibdib mo'y buhay.
Lupang Hinirang,
Duyan ka ng magiting,
Sa manlulupig,
Di ka pasisiil.
 Sa dagat at bundok,
Sa simoy at sa langit mong bughaw,
May dilag ang tula,
At awit sa paglayang minamahal.
Ang kislap ng watawat mo'y
Tagumpay na nagniningning,
Ang bituin at araw niya,
Kailan pa ma'y di magdidilim,
Lupa ng araw ng luwalhati't pagsinta,
Buhay ay langit sa piling mo,
Aming ligaya na pag may mang-aapi,
Ang mamatay ng dahil sa iyo.

Section 37. The rendition of the National Anthem, whether played or sung, shall be in accordance
with the musical arrangement and composition of Julian Felipe.

Section 38. When the National Anthem is played at a public gathering, whether by a band or by
singing or both, or reproduced by any means, the attending public shall sing the anthem. The singing
must be done with fervor.

As a sign of respect, all persons shall stand at attention and face the Philippine flag, if there is one
displayed, and if there is none, they shall face the band or the conductor. At the first note, all
persons shall execute a salute by placing their right palms over their left chests. Those in military,
scouting, citizens military training and security guard uniforms shall give the salute prescribed by
their regulations. The salute shall be completed upon the last note of the anthem.

The anthem shall not be played and sung for mere recreation, amusement or entertainment
purposes except on the following occasions:

a) International competitions where the Philippines is the host or has a representative;

b) Local competitions;

c) During the "signing off" and "signing on" of radio broadcasting and television stations;

d) Before the initial and last screening of films and before the opening of theater
performances; and

e) Other occasions as may be allowed by the Institute.

Section 39. All officials and employees of the national and local government, and any agency or
instrumentality thereof, including government-owned or controlled corporations, privately-owned
entities or offices displaying the national flag and government institutions of learning are hereby
directed to comply strictly with the rules prescribed for the rendition of the anthem. Failure to observe
the rules shall be a ground for administrative discipline.

CHAPTER III
THE NATIONAL MOTTO

Section 40. The National Motto shall be "MAKA-DIYOS, MAKA-TAO, MAKAKALIKASAN AT

MAKABANSA."
 CHAPTER IV
THE NATIONAL COAT-OF-ARMS

Section 41. The National Coat-of-Arms shall have:

Paleways of two (2) pieces, azure and gules; a chief argent studded with three (3) mullets
equidistant from each other; and, in point of honor, ovoid argent over all the sun rayonnant
with eight minor and lesser rays. Beneath shall be the scroll with the words "REPUBLIKA NG
PILIPINAS," inscribed thereon.

CHAPTER V
THE GREAT SEAL

Section 42. The Great Seal shall be circular in form, with the arms as described in the preceding
Sec., but without the scroll and the inscription thereon. Surrounding the whole shall be a double
marginal circle within which shall appear the words "Republika ng Pilipinas." For the purpose of
placing The Great Seal, the color of the arms shall not be deemed essential but tincture
representation must be used.

The Great Seal shall also bear the National Motto.

Section 43. The Great Seal shall be affixed to or placed upon all commissions signed by the
President and upon such other official documents and papers of the Republic of the Philippines as
may be provided by law, or as may be required by custom and usage. The President shall have
custody of the Great Seal.

CHAPTER VI
OFFICIAL SEAL AND OTHER HERALDIC ITEMS AND DEVICES

Section 44. Any government entity, including the military, may adopt appropriate coat-of-arms,
administrative seals, logo, insignia, badges, patches, and banners; and initiate awards, citations,
orders or decorations; as may be authorized by Congress or the Office of the President.

Section 45. Such heraldic devices and items shall be filed with the Institute for recording and
evaluation as to precedence, design, customs and traditions. The Institute shall promulgate the
corresponding rules and regulations which shall be submitted for approval to the Office of the
President or to Congress.

Section 46. All government offices including the military are hereby ordered to purchase all heraldic
items and devices from manufacturers accredited and authorized by the Institute. Such items and
devices shall be subject to inspection by the purchasing agency's internal inspector and the COA
representative using the design and specifications approved by the Office of the President or by the
Congress, through the Institute.

Section 47. No government official or employee shall accept any order or decoration from any
foreign government without the consent of Congress, and without the prior evaluation and
documentation of such order or decoration by the Institute.

CHAPTER VII
PENALTIES
Section 48. Failure or refusal to observe the provisions of this Act; and any violation of the
corresponding rules and regulations issued by the Office of the President, shall after proper notice
and hearing, shall be penalized by public censure which shall be published at least once in a
newspaper of general circulation.

The Department of Education, Culture and Sports and the Commission on Higher Education, upon
the recommendation of the Institute and after proper notice and hearing, shall cause the cancellation
of the recognition or permit of any private educational institution which fails or refuses to observe the
provisions of this Act for the second time.

Section 49. The Department of Education, Culture and Sports (DECS) and the Commission on
Higher Education shall ensure that the National Anthem, as adopted by law, shall be committed to
memory by all students of both public and private educational institutions, and performed during the
flag ceremony conducted in accordance with the rules and regulations issued by the Office of the
President. In addition, they shall make available the vocal, piano or band scores of the National
Anthem, as adopted by law, to all private and public schools, as well as the general public.

Section 50. Any person or juridical entity which violates any of the provisions of this Act shall, upon
conviction, be punished by a fine of not less than Five thousand pesos (P5,000) nor more than
Twenty thousand pesos (P20,000), or by imprisonment for not more than one (1) year, or both such
fine and imprisonment, at the discretion of the court: Provided, That for any second and additional
offenses, both fine and imprisonment shall always be imposed: Provided, further, That in case the
violation is committed by a juridical person, its President or Chief Executive Officer thereof shall be
liable.

CHAPTER VIII
COMMON PROVISIONS

Section 51. The Institute shall issue the necessary rules and regulations to implement the provisions
of this Act within ninety (90) days after effectivity. The Institute shall submit its rules and regulations
to the Office of the President and the Congress of the Philippines.

Section 52. The Institute shall also be responsible for the strict enforcement of the provisions of this
Act. It may call upon any government department, agency, office, or government instrumentality,
including government corporations, and local government units, for such assistance as it may deem
necessary for the effective discharge of its functions under this Act.

Section 53. Separability clause. – If any provision, or part hereof, is held invalid or unconstitutional,
the remainder of this Act not otherwise affected shall be valid and subsisting.

Section 54. Repealing clause. – Any law, presidential decree or issuance, executive order, letter of
instruction, administrative order, rule or regulation contrary to, or inconsistent with, the provisions of
this Act is hereby repealed, modified, or amended accordingly.

Section 55. Effectivity. – This Act shall take effect fifteen (15) days from the date of its publication
in the Official Gazette or in at least two (2) newspapers of general circulation.

Approved: February 12, 1998

ROQUE R. MARTINEZ, A.M. No. P-04-1795
MARIA ELENA M. FELIPE, [Formerly OCA I.P.I No. 02-1447-P]
ROBERT R. MIANO,
ROSALINDA G. MACASA and
CIRIACO D. MARIVELES, JR.,
Complainants, Present:
PUNO, C.J., Chairperson,

YNARES-SANTIAGO,
- v e r s u s - CARPIO,
CORONA and
LEONARDO-DE CASTRO, JJ.
NORVELL R. LIM, Sheriff III,
Regional Trial Court of
Romblon, Romblon, Branch 81,
Respondent. Promulgated:
March 25, 2009
x - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

RESOLUTION
CORONA, J.:
This complaint involves two interrelated administrative charges against respondent
Norvell R. Lim, Sheriff III of the Regional Trial Court of Romblon, Romblon,
Branch 81.
On March 11, 2002, respondent sent a letter to Arsenio
R.M. Almaddin, officer-in-charge of the Office of the Provincial Prosecutor (OPP)
of Romblon stating:
I wish to inform you that today, Monday, March 11, 2002, at 8 a.m.,
and for the month of March 2002, [it] is the turn of the [OPP] to lead the
flag ceremony.

However, this morning, this was not done because none of the
personnel of your office was present.

We hope that we would be able to look forward to seeing all the

personnel of [the OPP] in the Hall of Justice, Romblon, Romblon,
 participate in [the flag ceremony] every Monday morning and Friday
afternoon.[1]

On May 16, 2002 complainants Roque R. Martinez, Maria Elena M. Felipe,

Robert R. Miano, Rosalinda G. Macasa and Ciriaco D. Mariveles, Jr., all employees
of the OPP, filed an administrative complaint for grave misconduct against
respondent in the Office of the Ombudsman.[2] They asserted that respondents March
11, 2002 letter portrayed them as unpatriotic Filipinos, tarnished their reputation as
public officers and cast dishonor, disrepute and contempt on their persons.

Respondent explained that, in the absence of the presiding judge, he was the
administrative officer-in-charge of the Hall of Justice. As such, it was his duty to
require complainants to attend the flag ceremony. Thus, he wrote Almaddin to
remind him that the OPP had been assigned to lead the flag ceremony for the month
of March 2002 and to inform him that no one from his office attended the ceremony
that morning. Respondent denied ill-will against complainants.

Subsequently, complainants filed another complaint against respondent charging

him of violation of PD[3] 26[4] which provides:

(1) Judges of the Courts of First Instance, Circuit Criminal

Courts, Juvenile and Domestic Relations Courts, Courts of
Agrarian Relations, Court of Industrial Relations, Military
Tribunals and City and Municipal Courts, may transmit in the
mail, free of charge, all official communications and papers
directly connected with the conduct of judicial proceedings.

(2) The envelope or wrapper of the privileged mail matter shall bear
on the left upper corner the name, official designation and station
of the official sending such mail matter and on the right upper
corner, the words: "Private or unauthorized use to avoid
 payment of postage is penalized by fine or imprisonment or
both." (emphasis supplied)

Complainants stated that respondent did not pay for postage stamps when he mailed
copies of his counter-affidavit to them. Since the mailed matter neither involved a
court process nor was in any way connected to the conduct of judicial proceedings,
he was guilty of violating the said decree.
Respondent asserted that the allegations against him were baseless. In fact, the
Ombudsman dismissed for lack of probable cause the complaint for violation of PD
26.[5]

But the Ombudsman referred the administrative aspect of the complaints against
respondent to the Office of the Court Administrator (OCA).[6]
With regard to the complaint for grave misconduct, the OCA found that
respondent bore no malice when he sent the March 11, 2002 letter. It noted:
There is nothing in the letter that is suggestive of complainants lack of
patriotism as to impute bad faith on the part of respondent. Respondent
was merely expressing his concern so that any similar incident may not
happen again mindful of everyones bounden duty to express and manifest
their patriotism and love of country and respect for the flag.

Thus, it recommended the dismissal of the complaint for lack of merit.

With regard to the complaint for violation of PD 26, the OCA found that respondent
mailed his counter-affidavit in the previous complaint (for grave misconduct) using
envelopes intended for free postage. Inasmuch as the mailed matter was not an
official communication related to the conduct of judicial proceedings, respondent
was guilty of violating the law. Hence, it recommended that complainant be
fined P1,000.

We adopt the findings of the OCA with a modification of the penalty.

Misconduct implies wrongful intention and not a mere error of judgment; an act that
is corrupt or inspired by an intention to violate the law or a persistent disregard of
well-known legal rules.[7]

Flag ceremonies inspire patriotism and evoke the finest sentiments of love of country
and people.[8] Section 18 of RA[9] 8491 provides:

Section 18. All government offices and educational institutions shall

henceforth observe the flag-raising ceremony every Monday morning and
the flag lowering ceremony every Friday afternoon. The ceremony shall
be simple and dignified and shall include the playing or singing of the
Philippine National Anthem.

Pursuant to this mandate, Supreme Court Circular No. 62-2001 (dated September
21, 2001) provides:
All Executive Judges shall supervise the holding of the flag raising and
flag lowering ceremonies in their respective Hall of Justice buildings or
courthouses and shall ensure the attendance of all judges and court
personnel in the rites.

In deference to these mandates, the Chief State Prosecutor directed the personnel of
the OPP to attend the flag ceremony.[10]

Consequently, as administrative officer-in-charge of the Hall of Justice of

Romblon, respondent was duty-bound to remind the employees to attend the flag
ceremony. Furthermore, the March 11, 2002 letter (quoted above) was courteously
written. Respondent neither used offensive language nor insinuated that
complainants were unpatriotic. Thus, there was no misconduct on the part of
respondent.

Nonetheless, we agree that respondent violated PD 26. In Bernadez v.

Montejar,[11] we held that the franking privilege granted by PD 26 extended only to
judges and referred to official communications and papers directly connected with
the conduct of judicial proceedings.[12] Respondent was not a judge nor was the
mailed matter related to the discharge of judicial functions. Thus, respondent
violated PD 26 for which a fine of P500 should be imposed on him. Considering that
respondent compulsorily retired on September 7, 2003, the fine of P500 shall be
deducted from his retirement benefits.

WHEREFORE, the complaint for grave misconduct against Sheriff Norvell

R. Lim is hereby dismissed for lack of merit. But he is found guilty of violating
Presidential Decree No. 26 and is hereby fined P500 which shall be deducted from
his retirement benefits.

SO ORDERED.
G.R. No. 190793 June 19, 2012

MAGDALO PARA SA PAGBABAGO, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

SERENO, J.:

Before this Court is a Petition for Certiorari pursuant to Rule 37, Section 1 of the Commission of
Elections (COMELEC) Rules of Procedure,1 in relation to Rules 64 and 65 of the Rules of Court,
assailing the Resolutions dated 26 October 2009 and 4 January 2010 issued by the COMELEC in
SPP Case No. 09-073 (PP).2

On 2 July 2009, Petitioner Magdalo sa Pagbabago (MAGDALO) filed its Petition for Registration with
the COMELEC, seeking its registration and/or accreditation as a regional political party based in the
National Capital Region (NCR) for participation in the 10 May 2010 National and Local Elections.3 In
the Petition, MAGDALO was represented by its Chairperson, Senator Antonio F. Trillanes IV, and its
Secretary General, Francisco Ashley L. Acedillo (Acedillo).4 The Petition was docketed as SPP No.
09-073 (PP) and raffled to the Second Division of the COMELEC (COMELEC–Second Division).5

In its Order dated 24 August 2009, the COMELEC–Second Division directed MAGDALO to cause
the publication of the Petition for Registration and the said Order in three daily newspapers of
general circulation, and set the hearing thereof on 3 September 2009.6 In compliance therewith,
MAGDALO caused the publication of both documents in HATAW! No. 1 sa Balita, Saksi sa Balita
and BOMBA BALITA (Saksi sa Katotohanan).7

On 3 September 2009, a hearing was conducted in which MAGDALO (a) established its compliance
with the jurisdictional requirements; (b) presented Acedillo as its witness; and (c) marked its
documentary evidence in support of its Petition for Registration. The following day, MAGDALO filed
its Formal Offer of Evidence.8

On 26 October 2009, the COMELEC–Second Division issued its Resolution denying the Petition for
Registration filed by MAGDALO.9 The relevant portions of the assailed Resolution read:

Magdalo Para sa Pagbabago should be refused registration in accordance with Art. IX-C, Section
2(5) of the Constitution. It is common knowledge that the party’s organizer and Chairman, Senator
Antonio F. Trillanes IV, and some members participated in the take-over of the Oakwood Premier
Apartments in Ayala Center, Makati City on July 27, 2003, wherein several innocent civilian
personnel were held hostage. This and the fact that they were in full battle gear at the time of the
mutiny clearly show their purpose in employing violence and using unlawful means to achieve their
goals in the process defying the laws of organized societies. x x x

xxx xxx xxx

WHEREFORE, premises considered, this Petition is hereby DENIED.

SO ORDERED.10 (Emphasis supplied.)

On 3 November 2009, MAGDALO filed a Motion for Reconsideration, which was elevated to the
COMELEC En Banc for resolution.11

Meanwhile, on 27 November 2009, MAGDALO filed a Manifestation of Intent to Participate in the

Party-List System of Representation in the 10 May 2010 Elections (Manifestation of Intent), in which
it stated that its membership includes "[f]ormer members of the Armed Forces of the Philippines
(AFP), Anti-Corruption Advocates, Reform-minded citizens."12 Thereafter, on 30 November 2009, it
filed its Amended Manifestation, which bore the following footnote: 13

With all due respect to the Honorable Commission, the MAGDALO PARA SA PAGBABAGO
("MAGDALO") manifests that the instant MANIFESTATION is being filed ex
abutanti (sic) cautelam (out of the abundance of caution) only and subject to the outcome of the
resolution of the Motion for Reconsideration filed by Magdalo in SPP No. 09-073 (PP) from the
Resolution dated 26 October 2009 of the Second Division of the Honorable Commission denying its
Petition for Registration/Accreditation as a Political Party based in the National Capital Region
[NCR], which motion is still pending the (sic) Honorable Commission En Banc. It is not in any way
intended to preempt the ruling of the Honorable Commission but merely to preserve the possibility of
pursuing the Party’s participation in the Party-List System of Representation in the eventuality that
their Petition is approved.

Thereafter, MAGDALO filed a Manifestation and Motion for Early Resolution dated 23 December
2009, in which it clarified its intention to participate in the 10 May 2010 National and Local Elections
as a party-list group.14

In its assailed Resolution dated 4 January 2010, the COMELEC En Banc denied the Motion for
Reconsideration filed by MAGDALO.15

In the instant Petition, MAGDALO argues that (a) the COMELEC Resolutions were not based on the
record or evidence presented; (b) the Resolutions preempted the decision of the trial court in
Criminal Case No. 03-2784, in which several members of the military are being tried for their
involvement in the siege of the Oakwood Premier Apartments (Oakwood); and (c) it has expressly
renounced the use of force, violence and other forms of unlawful means to achieve its goals. Thus,
MAGDALO prays for this Court to: (a) reverse and set aside the 26 October 2009 and 4 January
2010 COMELEC Resolutions; (b) grant its Petition for Registration; and (c) direct the COMELEC to
issue a Certificate of Registration.16 The Petition likewise includes a prayer for the issuance of a
Temporary Restraining Order (TRO), Writ of Preliminary Mandatory Injunction and/or Injunctive
Relief to direct the COMELEC to allow MAGDALO to participate in the 10 May 2010 National and
Local Elections.17 However, this Court denied the issuance of a TRO in its Resolution dated 2
February 2010.18

To support the grant of reliefs prayed for, MAGDALO puts forward the following arguments:

The findings of the assailed resolutions on the basis of which the Petition was denied are based on
pure speculation. The Resolutions speculated as to the alleged motives and/or intentions of the
founders of petitioner Magdalo, which claims are not based on evidence but on mere conjecture and
pure baseless presuppositions;

The assailed Resolutions effectively preempted the court trying the case. The subject Resolutions
unfairly jumped to the conclusion that the founders of the Magdalo "committed mutiny", "held
innocent civilian personnel as hostage", "employed violence" and "use[d] unlawful means" and "in
the process defied the laws of organized society" purportedly during the Oakwood incident when
even the court trying their case, [Regional Trial Court, National Capital Judicial Region, Makati City],
Branch 148, has not yet decided the case against them;

– and –

The Resolution violates the constitutional presumption of innocence in favor of founders of the
Magdalo and their basic right of to [sic] due process of law.19

On the other hand, the COMELEC asserts that it had the power to ascertain the eligibility of
MAGDALO for registration and accreditation as a political party.20 It contends that this determination,
as well as that of assessing whether MAGDALO advocates the use of force, would entail the
evaluation of evidence, which cannot be reviewed by this Court in a petition for certiorari.21

However, MAGDALO maintains that although it concedes that the COMELEC has the authority to
assess whether parties applying for registration possess all the qualifications and none of the
disqualifications under the applicable law, the latter nevertheless committed grave abuse of
discretion in basing its determination on pure conjectures instead of on the evidence on record.22

Preliminary to the examination of the substantive issues, it must be discussed whether this case has
been rendered moot and academic by the conduct of the 10 May 2010 National and Local Elections.
Although the subject Petition for Registration filed by MAGDALO was intended for the elections on
even date, it specifically asked for accreditation as a regional political party for purposes of
subsequent elections.23

Moreover, even assuming that the registration was only for the 10 May 2010 National and Local
Elections, this case nevertheless comes under the exceptions to the rules on mootness, as
explained in David v. Macapagal-Arroyo:24

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. Generally,
courts decline jurisdiction over such case or dismiss it on ground of mootness.

xxx xxx xxx

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when [the] constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case
is capable of repetition yet evading review.25 (Emphasis supplied.)

The second and fourth exceptions are clearly present in the case at bar. The instant action brings to
the fore matters of public concern, as it challenges the very notion of the use of violence or unlawful
means as a ground for disqualification from party registration. Moreover, considering the expressed
intention of MAGDALO to join subsequent elections, as well as the occurrence of supervening
events pertinent to the case at bar, it remains prudent to examine the issues raised and resolve the
arising legal questions once and for all.

Having established that this Court can exercise its power of judicial review, the issue for resolution is
whether the COMELEC gravely abused its discretion when it denied the Petition for Registration filed
by MAGDALO on the ground that the latter seeks to achieve its goals through violent or unlawful
means. This Court rules in the negative, but without prejudice to MAGDALO’s filing anew of a
Petition for Registration.

The COMELEC has a constitutional and statutory mandate to ascertain the eligibility of parties and
organizations to participate in electoral contests. The relevant portions of the 1987 Constitution read:

ARTICLE VI – LEGISLATIVE DEPARTMENT

xxx xxx xxx

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and
fifty members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and
those who, as provided by law, shall be elected through a party-list system of registered national,
regional, and sectoral parties or organizations.

xxx xxx xxx

ARTICLE IX – CONSTITUTIONAL COMMISSIONS

C. The Commission on Elections

xxx xxx xxx

Section 2. The Commission on Elections shall exercise the following powers and functions:

xxx xxx xxx

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in
addition to other requirements, must present their platform or program of government; and accredit
citizens’ arms of the Commission on Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to
uphold and adhere to this Constitution, or which are supported by any foreign government shall
likewise be refused registration. x x x. (Emphasis supplied.)

Echoing these constitutional provisions, Batas Pambansa Bilang 881 (BP 881), otherwise known as
the Omnibus Election Code, states:

Sec. 60. Political party. – "Political party" or "party," when used in this Act, means an organized
group of persons pursuing the same ideology, political ideals or platforms of government and
includes its branches and divisions. To acquire juridical personality, qualify it for subsequent
accreditation, and to entitle it to the rights and privileges herein granted to political parties, a
political party shall first be duly registered with the Commission. Any registered political party
that, singly or in coalition with others, fails to obtain at least ten percent of the votes cast in the
constituency in which it nominated and supported a candidate or candidates in the election next
following its registration shall, after notice and hearing, be deemed to have forfeited such status as a
registered political party in such constituency.

Sec. 61. Registration. – Any organized group of persons seeking registration as a national or
regional political party may file with the Commission a verified petition attaching thereto its
constitution and by-laws, platforms or program of government and such other relevant information as
may be required by the Commission. The Commission shall after due notice and hearing, resolve
the petition within ten days from the date it is submitted for decision. No religious sect shall be
registered as a political party and no political party which seeks to achieve its goal through
violence shall be entitled to accreditation. (Emphasis supplied.)

On the other hand, Republic Act No. 7941, otherwise known as the Party-List System Act, reads in
part:

Section 2. Declaration of policy. The State shall promote proportional representation in the election
of representatives to the House of Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free and open party
system in order to attain the broadcast possible representation of party, sectoral or group interests in
the House of Representatives by enhancing their chances to compete for and win seats in the
legislature, and shall provide the simplest scheme possible.

Section 3. Definition of Terms. (a) The party-list system is a mechanism of proportional

representation in the election of representatives to the House of Representatives from national,
regional and sectoral parties or organizations or coalitions thereof registered with the Commission
on Elections (COMELEC). Component parties or organizations of a coalition may participate
independently provided the coalition of which they form part does not participate in the party-list
system. (Emphasis supplied.)

Thus, to join electoral contests, a party or organization must undergo the two-step process of
registration and accreditation, as this Court explained in Liberal Party v. COMELEC:26

x x x Registration is the act that bestows juridical personality for purposes of our election laws;
accreditation, on the other hand, relates to the privileged participation that our election laws grant to
qualified registered parties.

xxx xxx xxx

x x x Accreditation can only be granted to a registered political party, organization or coalition; stated
otherwise, a registration must first take place before a request for accreditation can be made. Once
registration has been carried out, accreditation is the next natural step to follow.27 (Emphasis
supplied.)

Considering the constitutional and statutory authority of the COMELEC to ascertain the eligibility of
parties or organizations seeking registration and accreditation, the pertinent question now is whether
its exercise of this discretion was so capricious or whimsical as to amount to lack of jurisdiction. In
view of the facts available to the COMELEC at the time it issued its assailed Resolutions, this Court
rules that respondent did not commit grave abuse of discretion.

A. The COMELEC did not commit grave abuse of discretion in taking judicial notice of the Oakwood
incident.
MAGDALO contends that it was grave abuse of discretion for the COMELEC to have denied the
Petition for Registration not on the basis of facts or evidence on record, but on mere speculation and
conjectures.28 This argument cannot be given any merit.

Under the Rules of Court, judicial notice may be taken of matters that are of "public knowledge, or
are capable of unquestionable demonstration."29 Further, Executive Order No. 292, otherwise known
as the Revised Administrative Code, specifically empowers administrative agencies to admit and
give probative value to evidence commonly acceptable by reasonably prudent men, and to take
notice of judicially cognizable facts.30 Thus, in Saludo v. American Express,31 this Court explained as
follows:

The concept of "facts of common knowledge" in the context of judicial notice has been explained as
those facts that are "so commonly known in the community as to make it unprofitable to require
proof, and so certainly known x x x as to make it indisputable among reasonable men."32

This Court has, in a string of cases, already taken judicial notice of the factual circumstances
surrounding the Oakwood standoff. 33 The incident involved over 300 heavily armed military officers
and enlisted men – led by the founding members of MAGDALO – who surreptitiously took over
Oakwood in the wee hours of 27 July 2003. They disarmed the security guards and planted
explosive devices around the building and within its vicinity. They aired their grievances against the
administration of former President Gloria Macapagal-Arroyo (former President Arroyo), withdrew
their support from the government, and called for her resignation, as well as that of her cabinet
members and of the top officials of the Philippine National Police (PNP) and the Armed Forces of the
Philippines (AFP). After the ensuing negotiations for these military agents to lay down their weapons,
defuse the explosives and return to the barracks, the debacle came to a close at 11:00 p.m. on the
same day.34 That the Oakwood incident was widely known and extensively covered by the media
made it a proper subject of judicial notice. Thus, the COMELEC did not commit grave abuse of
discretion when it treated these facts as public knowledge,35 and took cognizance thereof without
requiring the introduction and reception of evidence thereon.

B. The COMELEC did not commit grave abuse of discretion in finding that MAGDALO uses violence
or unlawful means to achieve its goals.

In the instant Petition, MAGDALO claims that it did not resort to violence when it took over Oakwood
because (a) no one, either civilian or military, was held hostage; (b) its members immediately
evacuated the guests and staff of the hotel; and (c) not a single shot was fired during the
incident.36 These arguments present a very narrow interpretation of the concepts of violence and
unlawful means, and downplays the threat of violence displayed by the soldiers during the takeover.

Under Article IX-C, Section 2(5) of the 1987 Constitution, parties, organizations and coalitions that
"seek to achieve their goals through violence or unlawful means" shall be denied registration. This
disqualification is reiterated in Section 61 of B.P. 881, which provides that "no political party which
seeks to achieve its goal through violence shall be entitled to accreditation."

Violence is the unjust or unwarranted exercise of force, usually with the accompaniment of
vehemence, outrage or fury.37 It also denotes physical force unlawfully exercised; abuse of force; that
force which is employed against common right, against the laws, and against public liberty.38 On the
other hand, an unlawful act is one that is contrary to law and need not be a crime, considering that
the latter must still unite with evil intent for it to exist.39

In the present case, the Oakwood incident was one that was attended with violence. As publicly
announced by the leaders of MAGDALO during the siege, their objectives were to express their
dissatisfaction with the administration of former President Arroyo, and to divulge the alleged
corruption in the military and the supposed sale of arms to enemies of the state.40 Ultimately, they
wanted the President, her cabinet members, and the top officials of the AFP and the PNP to
resign.41 To achieve these goals, MAGDALO opted to seize a hotel occupied by civilians, march in
the premises in full battle gear with ammunitions, and plant explosives in the building. These brash
methods by which MAGDALO opted to ventilate the grievances of its members and withdraw its
support from the government constituted clear acts of violence.

The assertions of MAGDALO that no one was held hostage or that no shot was fired42 do not mask its
use of impelling force to take over and sustain the occupation of Oakwood. Neither does its express
renunciation of the use of force, violence and other unlawful means in its Petition for Registration
and Program of Government43 obscure the actual circumstances surrounding the encounter. The
deliberate brandishing of military power, which included the show of force, use of full battle gear,
display of ammunitions, and use of explosive devices, engendered an alarming security risk to the
public. At the very least, the totality of these brazen acts fomented a threat of violence that preyed
on the vulnerability of civilians. The COMELEC did not, therefore, commit grave abuse of discretion
when it treated the Oakwood standoff as a manifestation of the predilection of MAGDALO for
resorting to violence or threats thereof in order to achieve its objectives.

C. The finding that MAGDALO seeks to achieve its goals through violence or unlawful means did not
operate as a prejudgment of Criminal Case No. 03-2784.

MAGDALO contends that the finding of the COMELEC that the former pursues its goals through
violence or unlawful means was tantamount to an unwarranted verdict of guilt for several crimes,
which in effect, preempted the proceedings in Criminal Case No. 03-2784 and violated the right to
presumption of innocence.44 This argument cannot be sustained.

The power vested by Article IX-C, Section 2(5) of the Constitution and Section 61 of BP 881 in the
COMELEC to register political parties and ascertain the eligibility of groups to participate in the
elections is purely administrative in character.45 In exercising this authority, the COMELEC only has
to assess whether the party or organization seeking registration or accreditation pursues its goals by
employing acts considered as violent or unlawful, and not necessarily criminal in nature. Although
this process does not entail any determination of administrative liability, as it is only limited to the
evaluation of qualifications for registration, the ruling of this Court in Quarto v. Marcelo46 is
nonetheless analogously applicable:

An administrative case is altogether different from a criminal case, such that the disposition in the
former does not necessarily result in the same disposition for the latter, although both may arise
from the same set of facts. The most that we can read from the finding of liability is that the
respondents have been found to be administratively guilty by substantial evidence – the quantum of
proof required in an administrative proceeding. The requirement of the Revised Rules of Criminal
Procedure…that the proposed witness should not appear to be the "most guilty" is obviously in line
with the character and purpose of a criminal proceeding, and the much stricter standards observed
in these cases. They are standards entirely different from those applicable in administrative
proceedings.47(Emphasis supplied.)

Further, there is a well-established distinction between the quantum of proof required for
administrative proceedings and that for criminal actions, to wit:

As an administrative proceeding, the evidentiary bar against which the evidence at hand is
measured is not the highest quantum of proof beyond reasonable doubt, requiring moral certainty to
support affirmative findings. Instead, the lowest standard of substantial evidence, that is, such
relevant evidence as a reasonable mind will accept as adequate to support a conclusion,
applies.48 (Emphasis omitted.)

In the case at bar, the challenged COMELEC Resolutions were issued pursuant to its administrative
power to evaluate the eligibility of groups to join the elections as political parties, for which the
evidentiary threshold of substantial evidence is applicable. In finding that MAGDALO resorts to
violence or unlawful acts to fulfil its organizational objectives, the COMELEC did not render an
assessment as to whether the members of petitioner committed crimes, as respondent was not
required to make that determination in the first place. Its evaluation was limited only to examining
whether MAGDALO possessed all the necessary qualifications and none of disqualifications for
registration as a political party. In arriving at its assailed ruling, the COMELEC only had to assess
whether there was substantial evidence adequate to support this conclusion.

On the other hand, Criminal Case No. 03-2784 is a criminal action charging members of MAGDALO
with coup d’état following the events that took place during the Oakwood siege. As it is a criminal
case, proof beyond reasonable doubt is necessary. Therefore, although the registration case before
the COMELEC and the criminal case before the trial court may find bases in the same factual
circumstances, they nevertheless involve entirely separate and distinct issues requiring different
evidentiary thresholds. The COMELEC correctly ruled thus:

It is at once apparent that that [sic] the proceedings in and the consequent findings of the
Commission (Second Division) in the subject resolution did not pre-empt the trial and decision of the
court hearing the cases of the Magdalo members. These are two different processes. The
proceedings in the Commission is [sic] a petition for registration of Magdalo as a political party and
the Commission is empowered to ascertain facts and circumstances relative to this case. It is not
criminal in nature unlike the court case of the Magdalo founders. Thus, the Second Division did not
violate the right of the Magdalo founders to be presumed innocent until proven guilty when it
promulgated the questioned resolution. There is likewise no violation of due process. Accreditation
as a political party is not a right but only a privilege given to groups who have qualified and met the
requirements provided by law.49

It is unmistakable from the above reasons that the ruling of the COMELEC denying the Petition for
Registration filed by MAGDALO has not, as respondent could not have, preempted Criminal Case
No. 03-2784 or violated the right of petitioner’s members to a presumption of innocence.

Subsequent Grant of Amnesty to the Military Personnel involved in the Oakwood standoff

It must be clarified that the foregoing discussion finding the absence of grave abuse of discretion on
the part of the COMELEC is based on the facts available to it at the time it issued the assailed 26
October 2009 and 4 January 2010 Resolutions. It is crucial to make this qualification, as this Court
recognizes the occurrence of supervening events that could have altered the COMELEC’s
evaluation of the Petition for Registration filed by MAGDALO. The assessment of the COMELEC
could have changed, had these incidents taken place before the opportunity to deny the Petition
arose. In the same manner that this Court takes cognizance of the facts surrounding the Oakwood
incident, it also takes judicial notice of the grant of amnesty in favor of the soldiers who figured in this
standoff.

This Court, in People v. Patriarca,50 explained the concept of amnesty, to wit:

Amnesty commonly denotes a general pardon to rebels for their treason or other high political
offenses, or the forgiveness which one sovereign grants to the subjects of another, who have
offended, by some breach, the law of nations. Amnesty looks backward, and abolishes and puts into
oblivion, the offense itself; it so overlooks and obliterates the offense with which he is charged, that
the person released by amnesty stands before the law precisely as though he had committed no
offense.

xxx xxx xxx

In the case of People vs. Casido, the difference between pardon and amnesty is given:

"Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and
proved by the person pardoned, because the courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive with the concurrence of Congress, is a public act of which the
courts should take judicial notice. x x x"51 (Emphasis supplied.)

Pursuant to Article VII, Section 19 of the Constitution,52 President Benigno S. Aquino III issued on 24
November 2010 Proclamation No. 75,53 which reads in part:

GRANTING AMNESTY TO ACTIVE AND FORMER PERSONNEL OF THE ARMED FORCES OF

THE PHILIPPINES, PHILIPPINE NATIONAL POLICE AND THEIR SUPPORTERS WHO MAY
HAVE COMMITTED CRIMES PUNISHABLE UNDER THE REVISED PENAL CODE, THE
ARTICLES OF WAR AND OTHER LAWS IN CONNECTION WITH THE OAKWOOD MUTINY, THE
MARINES STAND-OFF AND THE PENINSULA MANILA HOTEL INCIDENT

WHEREAS, it is recognized that certain active and former personnel of the Armed Forces of the
Philippines (AFP), the Philippine National Police (PNP) and their supporters have or may have
committed crimes punishable under the Revised Penal Code, the Articles of War and other laws in
connection with, in relation or incident to the July 27, 2003 Oakwood Mutiny, the February 2006
Marines Stand-Off and the November 29, 2007 Manila Pen Incident;

WHEREAS, there is a clamor from certain sectors of society urging the President to extend amnesty
to said AFP personnel and their supporters;

WHEREAS, Section 19, Article VII of the Constitution expressly vests the President the power to
grant amnesty;

WHEREAS, the grant of amnesty in favor of the said active and former personnel of the AFP and
PNP and their supporters will promote an atmosphere conducive to the attainment of a just,
comprehensive and enduring peace and is in line with the Government’s peace and reconciliation
initiatives;

NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Philippines, by virtue of the
powers vested in me by Section 19, Article VII of the Philippine Constitution, do
hereby DECLARE and PROCLAIM:

SECTION 1. Grant of Amnesty. – Amnesty is hereby granted to all active and former personnel of
the AFP and PNP as well as their supporters who have or may have committed crimes punishable
under the Revised Penal Code, the Articles of War or other laws in connection with, in relation or
incident to the July 27, 2003 Oakwood Mutiny, the February 2006 Marines Stand-Off and the
November 29, 2007 Manila Peninsula Incident who shall apply therefor; Provided that amnesty shall
not cover rape, acts of torture, crimes against chastity and other crimes committed for personal
ends.
 xxx xxx xxx

SECTION 4. Effects. – (a) Amnesty pursuant to this proclamation shall extinguish any criminal
liability for acts committed in connection, incident or related to the July 27, 2003 Oakwood Mutiny,
the February 2006 Marines Stand-Off and the November 29, 2007 Peninsula Manila Hotel Incident
without prejudice to the grantee’s civil liability for injuries or damages caused to private persons.

(b) Except as provided below, the grant of amnesty shall effect the restoration of civil and
political rights or entitlement of grantees that may have been suspended, lost or adversely
affected by virtue of any executive, administrative or criminal action or proceedings against
the grantee in connection with the subject incidents, including criminal conviction or (sic) any
form, if any.

(c) All enlisted personnel of the Armed Forces of the Philippines with the rank of up to
Technical Sergeant and personnel of the PNP with the rank of up to Senior Police Officer 3,
whose applications for amnesty would be approved shall be entitled to reintegration or
reinstatement, subject to existing laws and regulations. However, they shall not be entitled to
back pay during the time they have been discharged or suspended from service or unable to
perform their military or police duties.

(d) Commissioned and Non-commissioned officers of the AFP with the rank of Master
Sergeant and personnel of the PNP with the rank of at least Senior Police Officer 4 whose
application for amnesty will be approved shall not be entitled to remain in the service,
reintegration or reinstatement into the service nor back pay.

(e) All AFP and PNP personnel granted amnesty who are not reintegrated or reinstated shall
be entitled to retirement and separation benefits, if qualified under existing laws and
regulation, as of the time [of] separation, unless they have forfeited such retirement benefits
for reasons other than the acts covered by this Proclamation. Those reintegrated or
reinstated shall be entitled to their retirement and separation benefit[s] upon their actual
retirement. (Emphasis supplied.)

Thereafter, the House of Representatives and the Senate adopted Concurrent Resolution No. 4 on
13 and 14 December 2010, respectively.54 Relevant portions of the Resolution partly read:

CONCURRENT RESOLUTION CONCURRING WITH PROCLAMATION NO. 75 OF THE

PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES DATED 24 NOVEMBER 2010 ENTITLED
"GRANTING AMNESTY TO ACTIVE AND FORMER PERSONNEL OF THE ARMED FORCES OF
THE PHILIPPINES, PHILIPPINE NATIONAL POLICE AND THEIR SUPPORTERS WHO MAY
HAVE COMMITTED CRIMES PUNISHABLE UNDER THE REVISED PENAL CODE, THE
ARTICLES OF WAR AND OTHER LAWS IN CONNECTION WITH THE OAKWOOD MUTINY, THE
MARINES STAND-OFF AND THE PENINSULA MANILA HOTEL INCIDENT

WHEREAS, Section 19, Article VII of the Constitution provides that the President shall have the
power to grant amnesty with the concurrence of a majority of all the Members of Congress;

xxx xxx xxx

WHEREAS, both Houses of Congress share the view of the President that in order to promote an
atmosphere conducive to the attainment of a just, comprehensive and enduing peace and in line
with the Government’s peace and reconciliation initiatives, there is a need to declare amnesty in
favor of the said active and former personnel of the AFP and PNP and their supporters;
WHEREAS, it is the sense of both House of Congress that it is imperative that an amnesty partaking
the nature proclaimed by His Excellency, the President of the Philippines, is necessary for the
general interest of the Philippines; xxx (Emphasis supplied.)

In light of the foregoing, to still sustain the finding, based on the participation of its members in the
Oakwood incident, that MAGDALO employs violence or other harmful means would be inconsistent
with the legal effects of amnesty. Likewise, it would not be in accord with the express intention of
both the Executive and the Legislative branches, in granting the said amnesty, to promote an
atmosphere conducive to attaining peace in line with the government’s peace and reconciliation
initiatives.

Nevertheless, this Court is not unmindful of the apprehensions of the COMELEC as regards the use
of violence. Thus, should MAGDALO decide to file another Petition for Registration, its officers must
1aw p++i1

individually execute affidavits renouncing the use of violence or other harmful means to achieve the
objectives of their organization. Further, it must also be underscored that the membership of
MAGDALO cannot include military officers and/or enlisted personnel in active service, as this act
would run counter to the express provisions of the Constitution:

ARTICLE XVI – GENERAL PROVISIONS

Section 5. (1) All members of the armed forces shall take an oath or affirmation to uphold and
defend this Constitution.

xxx xxx xxx

(3) Professionalism in the armed forces and adequate remuneration and benefits of its members
shall be a prime concern of the State. The armed forces shall be insulated from partisan politics.

No member of the military shall engage directly or indirectly in any partisan political activity, except
to vote.
1âw phi1

(4) No member of the armed forces in the active service shall, at any time, be appointed or
designated in any capacity to a civilian position in the Government including government-owned or
controlled corporations or any of their subsidiaries. (Emphasis supplied.)

This Court finds that the COMELEC did not commit grave abuse of discretion in denying the Petition
for Registration filed by MAGDALO. However, in view of the subsequent amnesty granted in favor of
the members of MAGDALO, the events that transpired during the Oakwood incident can no longer
be interpreted as acts of violence in the context of the disqualifications from party registration.

WHEREFORE, the instant Petition is DISMISSED. The 26 October 2009 and 4 January 2010
Resolutions of the Commission on Elections are hereby AFFIRMED, without prejudice to the filing
anew of a Petition for Registration by MAGDALO.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

WE CONCUR:
 ANTONIO T. CARPIO
Senior Associate Justice

(On official leave)

TERESITA J. LEONARDO-DE CASTRO
PRESBITERO J. VELASCO, JR.
Associate Justice
Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

(On leave)
JOSE PORTUGAL PEREZ
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. No. 296, The Judiciary Act of 1948, as amended)

Footnotes

1
Section 1. Petition for Certiorari; and Time to File. – Unless otherwise provided by law, or by
any specific provisions in these Rules, any decision, order or ruling of the Commission may
be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days
from its promulgation.

2
Rollo, pp. 31-44.

3
Petition for Certiorari ("Petition"), rollo, p. 5; Petition for Registration, rollo, pp. 45-51.

4
Petition for Registration, p.1; rollo, p. 45.
5
Petition, rollo, p. 5.

6
Id.

7
Id. at 6.

8
Id.

9
Id.

10
Resolution dated 26 October 2009 ("First Resolution"), rollo, pp. 33-36.

11
Petition, rollo, p. 6.

12
Annex "H" of the Petition, rollo, pp. 183-184.

13
Annexes "H-1" and "H-2" of the Petition, rollo, pp. 185-187.

14
Annex "I" of the Petition, rollo, pp. 188-189.

15
Rollo, pp. 37-44.

16
Petition, rollo, pp. 3-30.

17
Id. at 23-27.

18
Rollo, p. 190.

19
Petition, rollo, p. 9.

20
Comment dated 24 February 2010, rollo, pp. 199-211.

21
Id.

22
Reply to Comment dated 14 March 2010, rollo, pp. 213-234.

23
Petition for Registration, rollo, p. 49.

24
522 Phil 705 (2006).

25
Id. at 753-754.

26
G.R. No. 191771, 6 May 2010, 620 SCRA 393.

27
Id. at 424-425.

28
Petition, rollo, pp. 11-13.

29
Rule 129, Sec. 2.
30
Section 12. Rules of Evidence. – In a contested case:

(1) The agency may admit and give probative value to evidence commonly accepted
by reasonably prudent men in the conduct of their affairs.

(2) Documentary evidence may be received in the form of copies or excerpts, if the
original is not readily available. Upon request, the parties shall be given opportunity
to compare the copy with the original. If the original is in the official custody of a
public officer, a certified copy thereof may be accepted.

(3) Every party shall have the right to cross-examine witnesses presented against
him and to submit rebuttal evidence.

(4) The agency may take notice of judicially cognizable facts and of generally
cognizable technical or scientific facts within its specialized knowledge. The parties
shall be notified and afforded an opportunity to contest the facts so noticed.

31
521 Phil. 585 (2006).

32
Id. at 604.

See Pimentel v. Romulo, 466 Phil. 482 (2004); Navales v. Abaya, 484 Phil. 367 (2004);
33

Gonzales v. Abaya, 530 Phil. 189 (2006).

34
Id.

35
Resolution dated 4 January 2010, p. 5; rollo, p. 41.

36
Petition, rollo, p 19.

37
Black’s Law Dictionary, Sixth Ed., p. 1570.

38
Id.

39
Id. at 1536; Bahilidad v. People, G.R. No. 185195, 17 March 2010, 615 SCRA 597.

40
Supra note at 33.

41
Id.

42
Petition, rollo, pp. 19-20.

43
Id. at 15-18.

44
Id. at 12-15.

45
Cipriano v. COMELEC, 479 Phil. 677 (2004).

46
G.R. No. 169042, 5 October 2011, 658 SCRA 580.
47
Id. at 611-612.

48
Miro v. Dosono, G.R. No. 170697, 30 April 2010, 619 SCRA 653, 660.

49
Resolution dated 4 January 2010, pp. 4-5; rollo, pp. 40-41.

50
395 Phil.690 (2000), citing People v. Casido, 336 Phil. 344 (1997).

51
Id. at 699.

Except in cases of impeachment, or as otherwise provided in this Constitution, the

52

President may grant reprieves, commutations, and pardons, and remit fines and forfeitures,
after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of
all the Members of the Congress.

53
106 O.G. 7016 (Dec., 2010).

54
107 O.G. 95 (Jan., 2011).
G.R. No. 187298 July 03, 2012

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN AWADI,
and SPO1 SATTAL H. JADJULI, Petitioners,
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO SABAN,
COL. EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT. BIENVENIDO G.
LATAG, in their capacity as officers of the Phil. Marines and Phil. National Police,
respectively, Respondents.

DECISION

SERENO, J.:

On 15 January 2009, three members from the International Committee of the Red Cross (ICRC)
were kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu.1 Andres Notter, a Swiss
national and head of the ICRC in Zamboanga City, Eugenio Vagni, an Italian national and ICRC
delegate, and Marie Jean Lacaba, a Filipino engineer, were purportedly inspecting a water and
sanitation project for the Sulu Provincial Jail when inspecting a water and sanitation project for the
Sulu Provincial Jail when they were seized by three armed men who were later confirmed to be
members of the Abu Sayyaf Group (ASG).2 The leader of the alleged kidnappers was identified as
Raden Abu, a former guard at the Sulu Provincial Jail. News reports linked Abu to Albader Parad,
one of the known leaders of the Abu Sayyaf.

On 21 January 2009, a task force was created by the ICRC and the Philippine National Police
(PNP), which then organized a parallel local group known as the Local Crisis Committee.3 The local
group, later renamed Sulu Crisis Management Committee, convened under the leadership of
respondent Abdusakur Mahail Tan, the Provincial Governor of Sulu. Its armed forces component
was headed by respondents General Juancho Saban, and his deputy, Colonel Eugenio Clemen. The
PNP component was headed by respondent Police Superintendent Bienvenido G. Latag, the Police
Deputy Director for Operations of the Autonomous Region of Muslim Mindanao (ARMM).4

Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male civilians
coming from different municipalities, who were redeployed to surrounding areas of Patikul.5 The
organization of the CEF was embodied in a "Memorandum of Understanding"6 entered into

between three parties: the provincial government of Sulu, represented by Governor Tan; the Armed
Forces of the Philippines, represented by Gen. Saban; and the Philippine National Police,
represented by P/SUPT. Latag. The Whereas clauses of the Memorandum alluded to the
extraordinary situation in Sulu, and the willingness of civilian supporters of the municipal mayors to
offer their services in order that "the early and safe rescue of the hostages may be achieved."7

This Memorandum, which was labeled ‘secret’ on its all pages, also outlined the responsibilities of
each of the party signatories, as follows:

Responsibilities of the Provincial Government:

1) The Provincial Government shall source the funds and logistics needed for the activation
of the CEF;
 2) The Provincial Government shall identify the Local Government Units which shall
participate in the operations and to propose them for the approval of the parties to this
agreement;

3) The Provincial Government shall ensure that there will be no unilateral action(s) by the
CEF without the knowledge and approval by both parties.

Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):

1) The AFP/PNP shall remain the authority as prescribed by law in military operations and
law enforcement;

2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance of their
assigned task(s);

3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of
operation(s);

4) The AFP/PNP shall provide the necessary support and/or assistance as called for in the
course of operation(s)/movements of the CEF.8

Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local Government,
announced to the media that government troops had cornered some one hundred and twenty (120)
Abu Sayyaf members along with the three (3) hostages.9 However, the ASG made

contact with the authorities and demanded that the military pull its troops back from the jungle
area.10 The government troops yielded and went back to their barracks; the Philippine Marines
withdrew to their camp, while police and civilian forces pulled back from the terrorists’ stronghold by
ten (10) to fifteen (15) kilometers. Threatening that one of the hostages will be beheaded, the ASG
further demanded the evacuation of the military camps and bases in the different barangays in
Jolo.11 The authorities were given no later than 2:00 o’clock in the afternoon of 31 March 2009 to
comply.12

On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation 1-09),
declaring a state of emergency in the province of Sulu.13 It cited the kidnapping incident as a ground
for the said declaration, describing it as a terrorist act pursuant to the Human Security

Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160),
which bestows on the Provincial Governor the power to carry out emergency measures during man-
made and natural disasters and calamities, and to call upon the appropriate national law
enforcement agencies to suppress disorder and lawless violence.

In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up checkpoints
and chokepoints, conduct general search and seizures including arrests, and other actions
necessary to ensure public safety. The pertinent portion of the proclamation states:

NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I, ABDUSAKUR

MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF
EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE PHILIPPINE NATIONAL
POLICE WITH THE ASSISTANCE OF THE ARMED FORCES OF THE PHILIPPINES AND THE
CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:
 1. The setting-up of checkpoints and chokepoints in the province;

2. The imposition of curfew for the entire province subject to such Guidelines as may
be issued by proper authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of the
kidnappers and their supporters; and

4. To conduct such other actions or police operations as may be necessary to ensure

public safety.

DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS

31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14

On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent P/SUPT.
Julasirim Kasim.15 Upon arriving at the police station, he was booked, and interviewed about his
relationship to Musin, Jaiton, and Julamin, who were all his deceased relatives. Upon admitting that
he was indeed related to the three, he was detained. After a few hours, former Punong Barangay
Juljahan Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3
Muhilmi Ismula, Punong Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani, were
also arrested.16 The affidavit17 of the apprehending officer alleged that they were suspected ASG
supporters and were being arrested under Proclamation 1-09. The following day, 2 April 2009, the
hostage Mary Jane Lacaba was released by the ASG.

On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of the
"Guidelines for the Implementation of Proclamation No. 1, Series of 2009 Declaring a State of
Emergency in the Province of Sulu."18These Guidelines suspended all Permits to Carry

Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed civilians to
seek exemption from the gun ban only by applying to the Office of the Governor and obtaining the
appropriate identification cards. The said guidelines also allowed general searches and seizures in
designated checkpoints and chokepoints.

On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi, Ahajan
Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the present Petition for Certiorari
and Prohibition,19 claiming that Proclamation 1-09 was issued with grave abuse of discretion
amounting to lack or excess of jurisdiction, as it threatened fundamental freedoms guaranteed under
Article III of the 1987 Constitution.

Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were issued ultra vires,
and thus null and void, for violating Sections 1 and 18, Article VII of the Constitution, which grants
the President sole authority to exercise emergency powers and calling-out powers as the chief
executive of the Republic and commander-in-chief of the armed forces.20 Additionally, petitioners
claim that the Provincial Governor is not authorized by any law to create civilian armed forces under
his command, nor regulate and limit the issuances of PTCFORs to his own private army.

In his Comment, Governor Tan contended that petitioners violated the doctrine on hierarchy of
courts when they filed the instant petition directly in the court of last resort, even if both the Court of
Appeals (CA) and the Regional Trial Courts (RTC) possessed concurrent jurisdiction with the
Supreme Court under Rule 65.21 This is the only procedural defense raised by respondent Tan.
Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT. Julasirim Kasim, and P/SUPT.
Bienvenido Latag did not file their respective Comments. 1âw phi 1

On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra vires, as
Governor Tan allegedly acted pursuant to Sections 16 and 465 of the Local Government Code,
which empowers the Provincial Governor to carry out emergency measures during calamities and
disasters, and to call upon the appropriate national law enforcement agencies to suppress disorder,
riot, lawless violence, rebellion or sedition.22 Furthermore, the Sangguniang Panlalawigan of Sulu
authorized the declaration of a state of emergency as evidenced by Resolution No. 4, Series of 2009
issued on 31 March 2009 during its regular session.23

The threshold issue in the present case is whether or not Section 465, in relation to Section 16, of
the Local Government Code authorizes the respondent governor to declare a state of emergency,
and exercise the powers enumerated under Proclamation 1-09, specifically the conduct of general
searches and seizures. Subsumed herein is the secondary question of whether or not the provincial
governor is similarly clothed with authority to convene the CEF under the said provisions.

We grant the petition.

I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy of Courts

We first dispose of respondents’ invocation of the doctrine of hierarchy of courts which allegedly
prevents judicial review by this Court in the present case, citing for this specific purpose, Montes v.
Court of Appeals and Purok Bagong Silang Association, Inc. v. Yuipco.24 Simply put, the

doctrine provides that where the issuance of an extraordinary writ is also within the competence of
the CA or the RTC, it is in either of these courts and not in the Supreme Court, that the specific
action for the issuance of such writ must be sought unless special and important laws are clearly and
specifically set forth in the petition. The reason for this is that this Court is a court of last resort and
must so remain if it is to perform the functions assigned to it by the Constitution and immemorial
tradition. It cannot be burdened with deciding cases in the first instance.25

The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court stated:

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the
Court. The principle of hierarchy of courts applies generally to cases involving factual questions. As
it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case,
however, raises constitutional questions of transcendental importance to the public. The Court can
resolve this case without determining any factual issue related to the case. Also, the instant case is a
petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article
VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case.27

The instant case stems from a petition for certiorari and prohibition, over which the Supreme Court
possesses original jurisdiction.28 More crucially, this case involves acts of a public official which
pertain to restrictive custody, and is thus impressed with transcendental public importance that
would warrant the relaxation of the general rule. The Court would be remiss in its constitutional
duties were it to dismiss the present petition solely due to claims of judicial hierarchy.

In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public importance involved
in cases that concern restrictive custody, because judicial review in these cases serves as "a
manifestation of the crucial defense of civilians ‘in police power’ cases due to the diminution of their
basic liberties under the guise of a state of emergency."30 Otherwise, the importance of the high
tribunal as the court of last resort would be put to naught, considering the nature of "emergency"
cases, wherein the proclamations and issuances are inherently short-lived. In finally disposing of the
claim that the issue had become moot and academic, the Court also cited transcendental public
importance as an exception, stating:

Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na pangangalaga

(restrictive custody) at pagmonitor ng galaw (monitoring of movements) ng nagpepetisyon,
dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng madla na nakapaloob dito,

(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan ang
kapulisan tungkol dito.

The moot and academic principle is not a magical formula that can automatically dissuade the courts
in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the paramount
public interest is involved; third, when [the] constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of
repetition yet evading review.

…There is no question that the issues being raised affect the public interest, involving as they do the
people’s basic rights to freedom of expression, of assembly and of the press. Moreover, the

Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It
has the symbolic function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by constitutional guarantees. And lastly,
respondents contested actions are capable of repetition. Certainly, the petitions are subject to
judicial review.

Evidently, the triple reasons We advanced at the start of Our ruling are justified under the foregoing
exceptions. Every bad, unusual incident where police officers figure in generates public interest and
people watch what will be done or not done to them. Lack of disciplinary steps taken against them
erode public confidence in the police institution. As petitioners themselves assert, the restrictive
custody of policemen under investigation is an existing practice, hence, the issue is bound to crop up
every now and then. The matter is capable of repetition or susceptible of recurrence. It better be
resolved now for the education and guidance of all concerned.31 (Emphasis supplied)

Hence, the instant petition is given due course, impressed as it is with transcendental public
importance.

II. Only the President is vested with calling-out powers, as the commander-in-chief of the Republic

i. One executive, one commander-in-chief

As early as Villena v. Secretary of Interior,32 it has already been established that there is one
repository of executive powers, and that is the President of the Republic. This means that when
Section 1, Article VII of the Constitution speaks of executive power, it is granted to the President and
no one else.33 As emphasized by Justice Jose P. Laurel, in his ponencia in Villena:

With reference to the Executive Department of the government, there is one purpose which is
crystal-clear and is readily visible without the projection of judicial searchlight, and that is the
establishment of a single, not plural, Executive. The first section of Article VII of the Constitution,
dealing with the Executive Department, begins with the enunciation of the principle that "The
executive power shall be vested in a President of the Philippines." This means that the President of
the Philippines is the Executive of the Government of the Philippines, and no other.34

Corollarily, it is only the President, as Executive, who is authorized to exercise emergency powers as
provided under Section 23, Article VI, of the Constitution, as well as what became known as the
calling-out powers under Section 7, Article VII thereof.

ii. The exceptional character of Commander-in-Chief powers dictate that they are exercised by one
president

Springing from the well-entrenched constitutional precept of One President is the notion that there
are certain acts which, by their very nature, may only be performed by the president as the Head of
the State. One of these acts or prerogatives is the bundle of Commander-in-Chief powers to which
the "calling-out" powers constitutes a portion. The President’s Emergency Powers, on the other
hand, is balanced only by the legislative act of Congress, as embodied in the second paragraph of
Section 23, Article 6 of the Constitution:

Article 6, Sec 23(2). In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment
thereof.35

Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.36

The power to declare a state of martial law is subject to the Supreme Court’s authority to review the
factual basis thereof. 37 By constitutional fiat, the calling-out powers, which is of lesser gravity than the
power to declare martial law, is bestowed upon the President alone. As noted in Villena, "(t)here are
certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be
exercised by him in person and no amount of approval or ratification will validate the exercise of any
of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas
corpus and proclaim martial law x x x.38

Indeed, while the President is still a civilian, Article II, Section 339 of the Constitution mandates that
civilian authority is, at all times, supreme over the military, making the civilian president the nation’s
supreme military leader. The net effect of Article II, Section 3, when read with Article VII,
Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed
forces. The Constitution does not require that the President must be possessed of military training
and talents, but as Commander-in-Chief, he has the power to direct military operations and to
determine military strategy. Normally, he would be expected to delegate the actual command of the
armed forces to military experts; but the ultimate power is his.40 As Commander-in-Chief, he is
authorized to direct the movements of the naval and military forces placed by law at his command,
and to employ them in the manner he may deem most effectual.41

In the case of Integrated Bar of the Philippines v. Zamora,42 the Court had occasion to rule that the
calling-out powers belong solely to the President as commander-in-chief:

When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear
from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be
called upon to overrule the President’s wisdom or substitute its own. However, this does not prevent
an examination of whether such power was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine the necessity of
calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision
is totally bereft of factual basis.

There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise of
such power.43(Emphasis supplied)

Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent
provision dealing with the revocation or review of the President’s action to call out the armed forces.
The distinction places the calling out power in a different category from the power to declare martial
law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of
the Constitution would have simply lumped together the three powers and provided for their
revocation and review without any qualification.44

That the power to call upon the armed forces is discretionary on the president is clear from the
deliberation of the Constitutional Commission:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the
President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to
suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he
can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ of
habeas corpus, his judgment is subject to review. We are making it subject to review by the
Supreme Court and subject to concurrence by the National Assembly. But when he exercises this
lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his
judgment cannot be reviewed by anybody.

xxx xxx xxx

MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.
The reason for the difference in the treatment of the aforementioned powers highlights the intent to
grant the President the widest leeway and broadest discretion in using the power to call out because
it is considered as the lesser and more benign power compared to the power to suspend the
privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights and individual freedoms, and thus
necessitating safeguards by Congress and review by this Court.

x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-
in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence, invasion or
rebellion.45 (Emphasis Supplied)

In the more recent case of Constantino, Jr. v. Cuisia,46 the Court characterized these powers as
exclusive to the President, precisely because they are of exceptional import:

These distinctions hold true to this day as they remain embodied in our fundamental law. There are
certain presidential powers which arise out of exceptional circumstances, and if exercised, would
involve the suspension of fundamental freedoms, or at least call for the supersedence of executive
prerogatives over those exercised by co-equal branches of government. The declaration of martial
law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power,
notwithstanding the judicial determination of guilt of the accused, all fall within this special class that
demands the exclusive exercise by the President of the constitutionally vested power. The list is by
no means exclusive, but there must be a showing that the executive power in question is of
similar gravitas and exceptional import.47

In addition to being the commander-in-chief of the armed forces, the President also acts as the
leader of the country’s police forces, under the mandate of Section 17, Article VII of the Constitution,
which provides that, "The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed." During the deliberations of the
Constitutional Commission on the framing of this provision, Fr. Bernas defended the retention of the
word "control," employing the same rationale of singularity of the office of the president, as the only
Executive under the presidential form of government.48

Regarding the country’s police force, Section 6, Article XVI of the Constitution states that: "The State
shall establish and maintain one police force, which shall be national in scope and civilian in
character, to be administered and controlled by a national police commission. The authority of local
executives over the police units in their jurisdiction shall be provided by law."49

A local chief executive, such as the provincial governor, exercises operational supervision over the
police,50 and may exercise control only in day-to-day operations, viz:

Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or by law full
control of the police by the local chief executive and local executives, the mayors. By our
experience, this has spawned warlordism, bossism and sanctuaries for vices and abuses. If the
national government does not have a mechanism to supervise these 1,500 legally, technically
separate police forces, plus 61 city police forces, fragmented police system, we will have a lot of
difficulty in presenting a modern professional police force. So that a certain amount of supervision
and control will have to be exercised by the national government.

For example, if a local government, a town cannot handle its peace and order problems or police
problems, such as riots, conflagrations or organized crime, the national government may come in,
especially if requested by the local executives. Under that situation, if they come in under such an
extraordinary situation, they will be in control. But if the day-to-day business of police investigation of
crime, crime prevention, activities, traffic control, is all lodged in the mayors, and if they are in
complete operational control of the day-to-day business of police service, what the national
government would control would be the administrative aspect.

xxx xxx xxx

Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual duties being
performed by the ordinary policemen, will be under the supervision of the local executives?

Mr. Natividad: Yes, Madam President.

xxx xxx xxx

Mr. de los Reyes: But in exceptional cases, even the operational control can be taken over by the
National Police Commission?

Mr. Natividad: If the situation is beyond the capacity of the local governments.51 (Emphases supplied)

Furthermore according to the framers, it is still the President who is authorized to exercise
supervision and control over the police, through the National Police Commission:

Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-in-Chief of all
the armed forces.

Mr. Natividad: Yes, Madam President.

Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not suppose they
come under the Commander-in-Chief powers of the President of the Philippines.

Mr. Natividad: They do, Madam President. By law, they are under the supervision and control of the
President of the Philippines.

Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national police.

Mr. Natividad: He is the President.

Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that the
President is the Commander-in-Chief of all the armed forces.

Mr. Natividad: No, not under the Commander-in-Chief provision.

Mr. Rodrigo: There are two other powers of the President. The

President has control over ministries, bureaus and offices, and supervision over local governments.
Under which does the police fall, under control or under supervision?

Mr. Natividad: Both, Madam President.

Mr. Rodrigo: Control and supervision.

Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the President.52

In the discussions of the Constitutional Commission regarding the above provision it is clear that the
framers never intended for local chief executives to exercise unbridled control over the police in
emergency situations. This is without prejudice to their authority over police units in their jurisdiction
as provided by law, and their prerogative to seek assistance from the police in day to day situations,
as contemplated by the Constitutional Commission. But as a civilian agency of the government, the
police, through the NAPOLCOM, properly comes within, and is subject to, the exercise by the
President of the power of executive control.53

iii. The provincial governor does not possess the same calling-out powers as the President

Given the foregoing, respondent provincial governor is not endowed with the power to call upon the
armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his
authority when he declared a state of emergency and called upon the Armed Forces, the police, and
his own Civilian Emergency Force. The calling-out powers contemplated under the Constitution is
exclusive to the President. An exercise by another official, even if he is the local chief executive, is
ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code,
as will be discussed subsequently.

Respondents, however, justify this stance by stating that nowhere in the seminal case of David v.
Arroyo, which dealt squarely with the issue of the declaration of a state of emergency, does it limit
the said authority to the President alone. Respondents contend that the ruling in David expressly
limits the authority to declare a national emergency, a condition which covers the entire country, and
does not include emergency situations in local government units.54 This claim is belied by the clear
intent of the framers that in all situations involving threats to security, such as lawless violence,
invasion or rebellion, even in localized areas, it is still the President who possesses the sole
authority to exercise calling-out powers. As reflected in the Journal of the Constitutional
Commission:

Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER in lieu of
"invasion or rebellion." Mr. Sumulong stated that the committee could not accept the amendment
because under the first section of Section 15, the President may call out and make use of the armed
forces to prevent or suppress not only lawless violence but even invasion or rebellion without
declaring martial law. He observed that by deleting "invasion or rebellion" and substituting PUBLIC
DISORDER, the President would have to declare martial law before he can make use of the armed
forces to prevent or suppress lawless invasion or rebellion.

Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter situation where
there is some lawless violence in a small portion of the country or public disorder in another at which
times, the armed forces can be called to prevent or suppress these incidents. He noted that the
Commander-in-Chief can do so in a minor degree but he can also exercise such powers should the
situation worsen. The words "invasion or rebellion" to be eliminated on line 14 are covered by the
following sentence which provides for "invasion or rebellion." He maintained that the proposed
amendment does not mean that under such circumstances, the President cannot call on the armed
forces to prevent or suppress the same.55 (Emphasis supplied)

III. Section 465 of the Local

Government Code cannot be invoked to justify the powers enumerated under Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC workers as a terroristic act,
and used this incident to justify the exercise of the powers enumerated under Proclamation 1-09.56 He
invokes Section 465, in relation to Section 16, of the Local Government Code, which purportedly
allows the governor to carry out emergency measures and call upon the appropriate national law
enforcement agencies for assistance. But a closer look at the said proclamation shows that there is
no provision in the Local Government Code nor in any law on which the broad and unwarranted
powers granted to the Governor may be based.

Petitioners cite the implementation of "General Search and Seizure including arrests in the pursuit of
the kidnappers and their supporters,"57 as being violative of the constitutional proscription on general
search warrants and general seizures. Petitioners rightly assert that this alone would be sufficient to
render the proclamation void, as general searches and seizures are proscribed, for being violative of
the rights enshrined in the Bill of Rights, particularly:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.58

In fact, respondent governor has arrogated unto himself powers exceeding even the martial law
powers of the President, because as the Constitution itself declares, "A state of martial law does not
suspend the operation of the Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ."59

We find, and so hold, that there is nothing in the Local Government Code which justifies the acts
sanctioned under the said Proclamation. Not even Section 465 of the said Code, in relation to
Section 16, which states:

Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.

xxx xxx xxx

(b) For efficient, effective and economical governance the purpose of which is the general welfare of
the province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall:

(1) Exercise general supervision and control over all programs, projects, services, and activities of
the provincial government, and in this connection, shall:

xxx xxx xxx

(vii) Carry out such emergency measures as may be necessary during and in the aftermath of man-
made and natural disasters and calamities;

(2) Enforce all laws and ordinances relative to the governance of the province and the exercise of
the appropriate corporate powers provided for under Section 22 of this Code, implement all
approved policies, programs, projects, services and activities of the province and, in addition to the
foregoing, shall:
 xxx xxx xxx

(vi) Call upon the appropriate national law enforcement agencies to suppress disorder, riot, lawless
violence, rebellion or sedition or to apprehend violators of the law when public interest so requires
and the police forces of the component city or municipality where the disorder or violation is
happening are inadequate to cope with the situation or the violators.

Section 16. General Welfare. - Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
(Emphases supplied)

Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the said
provision expressly refers to calamities and disasters, whether man-made or natural. The governor,
as local chief executive of the province, is certainly empowered to enact and implement emergency
measures during these occurrences. But the kidnapping incident in the case at bar cannot be
considered as a calamity or a disaster. Respondents cannot find any legal mooring under this
provision to justify their actions.

Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two reasons. First,
the Armed Forces of the Philippines does not fall under the category of a "national law enforcement
agency," to which the National Police Commission (NAPOLCOM) and its departments belong.

Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and defend the
Republic against all enemies, foreign and domestic. Its aim is also to secure the integrity of the
national territory.60

Second, there was no evidence or even an allegation on record that the local police forces were
inadequate to cope with the situation or apprehend the violators. If they were inadequate, the
recourse of the provincial governor was to ask the assistance of the Secretary of Interior and Local
Government, or such other authorized officials, for the assistance of national law enforcement
agencies.

The Local Government Code does not involve the diminution of central powers inherently vested in
the National Government, especially not the prerogatives solely granted by the Constitution to the
President in matters of security and defense.

The intent behind the powers granted to local government units is fiscal, economic, and
administrative in nature. The Code is concerned only with powers that would make the delivery of
1âwphi1

basic services more effective to the constituents,61 and should not be unduly stretched to confer
calling-out powers on local executives.

In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of powers is a
step towards the autonomy of local government units (LGUs), and is actually an experiment whose
success heavily relies on the power of taxation of the LGUs. The underpinnings of the Code can be
found in Section 5, Article II of the 1973 Constitution, which allowed LGUs to create their own
sources of revenue.62 During the interpellation made by Mr. Tirol addressed to Mr. de Pedro, the latter
emphasized that "Decentralization is an administrative concept and the process of shifting and
delegating power from a central point to subordinate levels to promote independence, responsibility,
and quicker decision-making. … (I)t does not involve any transfer of final authority from the national
to field levels, nor diminution of central office powers and responsibilities. Certain government
agencies, including the police force, are exempted from the decentralization process because their
functions are not inherent in local government units."63

IV. Provincial governor is not authorized to convene CEF

Pursuant to the national policy to establish one police force, the organization of private citizen armies
is proscribed. Section 24 of Article XVIII of the Constitution mandates that:

Private armies and other armed groups not recognized by duly constituted authority shall be
dismantled. All paramilitary forces including Civilian Home Defense Forces (CHDF) not consistent
with the citizen armed force established in this Constitution, shall be dissolved or, where appropriate,
converted into the regular force.

Additionally, Section 21of Article XI states that, "The preservation of peace and order within the
regions shall be the responsibility of the local police agencies which shall be organized, maintained,
supervised, and utilized in accordance with applicable laws. The defense and security of the regions
shall be the responsibility of the National Government."

Taken in conjunction with each other, it becomes clear that the Constitution does not authorize the
organization of private armed groups similar to the CEF convened by the respondent Governor. The
framers of the Constitution were themselves wary of armed citizens’ groups, as shown in the
following proceedings:

MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary force operating
under the cloak, under the mantle of legality is creating a lot of problems precisely by being able to
operate as an independent private army for many regional warlords. And at the same time, this I
think has been the thrust, the intent of many of the discussions and objections to the paramilitary
units and the armed groups.

MR. PADILLA: My proposal covers two parts: the private armies of political warlords and other
armed torces not recognized by constituted authority which shall be dismantled and dissolved. In my
trips to the provinces, I heard of many abuses committed by the CHDF (Civilian Home Defense
Forces), specially in Escalante, Negros Occidental. But I do not know whether a particular CHDF is
approved or authorized by competent authority. If it is not authorized, then the CHDF will have to be
dismantled. If some CHDFs, say in other provinces, are authorized by constituted authority, by the
Armed Forces of the Philippines, through the Chief of Staff or the Minister of National Defense, if
they are recognized and authorized, then they will not be dismantled. But I cannot give a categorical
answer to any specific CHDF unit, only the principle that if they are armed forces which are not
authorized, then they should be dismantled. 64 (Emphasis supplied)

Thus, with the discussions in the Constitutional Commission as guide, the creation of the Civilian
Emergency Force (CEF) in the present case, is also invalid.

WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding respondents to

desist from further proceedings m implementing Proclamation No. 1, Series of 2009, and its
Implementing Guidelines. The said proclamation and guidelines are hereby declared NULL and
VOID for having been issued in grave abuse of discretion, amounting to lack or excess of
jurisdiction.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice

PRESBITER J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

(On leave)
MARIANO C. DEL CASTILLO
LUCAS P. BERSAMIN*
Associate Justice
Associate Justice

(On leave)
MARTIN S. VILLARAMA, JR.
ROBERTO A. ABAD*
Associate Justice
Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Footnotes

* On leave.
1
Petition for Certiorari and Prohibition, rollo, p.8.

2
"Red cross won’t return to Sulu yet," 27 October 2010, 5:44:00, by Jerome Aning, at
http://www.inquirer.net/specialfeatures/redcrossabduction/view.php?db=1&article=20101027-
299979. Last visited 11 September 2011.

3
Supra note 1.

4
Rollo, p. 9.

5
"State of emergency in Sulu; attack looms," The Philippine Star, updated 1 April 2009,
12:00, by Roel Pareño and James Mananghaya, at
http://www.philstar.com/Article.aspx?articleid=454055. Last visited 11 September 2011.

6
Rollo, pp. 242- 244.

7
Id. at 242.

8
Memorandum of Understanding, p. 2 of 3; rollo, p. 243.

9
Supra note 5.

10
Petition for Certiorari and Prohibition, rollo, p. 9.

11
Supra note 5.

12
Supra note 10.

13
Petition for Certiorari and Prohibition, rollo, pp. 9-10.

14
Id.

15
Id. at 8-9.

16
Id. at 9.

Affidavit of the Apprehending Officer, attached as Annex B to respondents’ Comment, id. at

17

245.

18
Attached as Annex B to Petition, id. at 69-73.

19
Id. at 3- 66.

20
Id. at 14.

21
Id. at 118.

22
Comment, pp. 7-10; id. at 123-126.

23
Attached as Annex A to the Comment, id. at 247- 249.
 Respectively, G.R. No. 143797, 4 May 2006, 489 SCRA 432, and G.R. No. 135092, 4 May
24

2006, 489 SCRA 382.

25
Montes v. CA, supra note 24.

26
433 Phil. 506 (2002).

27
Id. at 524.

28
In relation to Sections 1 and 2, Rule 65 of the Revised Rules of Court, par. 2, Sec. 4 thereof
states: "The petition shall be filed in the Supreme Court or, if it relates to the acts or
omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial
Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may
also be filed in the Court of Appeals whether or not the same is in aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the
acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these
rules, the petition shall be filed in and cognizable only by the Court of Appeals."

G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, 3 May 2006, 489
29

SCRA 160.

30
Id. at 214.

As cited and applied in Manalo v. Calderon, G.R. No. 178920, 15 October 2007, 536 SCRA
31

290, 304.

32
67 Phil. 451 (1939).

Fr. Joaquin Bernas, S.J., The 1987 Philippine Constitution A Comprehensive Reviewer,
33

(2006), p. 290.

34
Supra note 32, at 464.

35
1987 CONSTITUTION.

36
Id.

37
1987 CONSTITUTION, Art. VII, Sec. 18 (2).

38
Supra note 32.

The provisions reads: "Civilian authority is, at all times, supreme over the military. The
39

Armed Forces of the Philippines is the protector of the people and the State. Its goal is to
secure the sovereignty of the State and the integrity of the national territory."

40
Supra note 33, at 314.

41
Id., citing Fleming v. Page, 9 How 603, 615 U.S. (1850).

42
392 Phil. 618.
43
Id. at 640.

44
Supra note 33, at 314-315.

45
Record of the Constitutional Commission, 29 July 1986, Tuesday, Vol. 2, p. 409.

46
G.R. No. 106064 , 13 October 2005, 472 SCRA 505.

47
Id. at 534.

48
Journal of the Constitutional Commission, 29 July 1986, Tuesday, Vol. 1, p. 488.

49
1987 CONSTITUTION, Art. VXI, Sec. 6.

50
Carpio v. Executive Secretary, G.R. No. 96409, 14 February 1992, 206 SCRA 290.

51
Record of the Constitutional Commission, 1 October 1986, Wednesday, pp. 293-294.

52
Id. at 296.

53
Supra note 50.

54
Comment, rollo, p. 128.

55
Journal of the Constitutional Commission, 30 July 1986, Wednesday, Vol. 1, p. 513.

56
Proclamation No. 01, Series of 2009, attached to the Comment as Annex A, rollo, p. 67.

57
Id. at 68.

58
1987 CONSTITUTION, Art. III, Sec. 2.

59
1987 CONSTITUTION, Art. XVII, Sec. 18 (4).

60
1987 Constitution, Art. II, Sec. 3.

Journal and Record of the House of Representatives Proceedings and Debates, Fourth
61

Regular Session 1990-1991, Vol. 1 (July 23-September 3, 1990), prepared by the

Publication and Editorial Division under the supervision of Hon. Quirino D. Abad Santos, Jr.,
Secretary, House of Representatives, Proceedings of 14 August, 1990, Tuesday.

62
Id., Proceedings of 25 July 1990, Wednesday.

63
Id.

64
Supra note 45, p. 386.
G.R. No. 193636 July 24, 2012

MARYNETTE R. GAMBOA, Petitioner,

vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial Director of Ilocos Norte,
and P/SUPT. WILLIAM 0. FANG, in his capacity as Chief, Intelligence Division, PNP Provincial
Office, Ilocos Norte,Respondents.

DECISION

SERENO, J.:

Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court) filed pursuant to
Rule 191 of the Rule on the Writ of Habeas Data,2 seeking a review of the 9 September 2010 Decision
in Special Proc. No. 14979 of the Regional Trial Court, First Judicial Region, Laoag City, Branch 13
(RTC Br. 13).3 The questioned Decision denied petitioner the privilege of the writ of habeas data.4

At the time the present Petition was filed, petitioner Marynette R. Gamboa (Gamboa) was the Mayor
of Dingras, Ilocos Norte.5 Meanwhile, respondent Police Senior Superintendent (P/SSUPT.) Marlou
C. Chan was the Officer-in-Charge, and respondent Police Superintendent (P/SUPT.) William O.
Fang was the Chief of the Provincial Investigation and Detective Management Branch, both of the
Ilocos Norte Police Provincial Office.6

On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative Order No.
275 (A.O. 275), "Creating an Independent Commission to Address the Alleged Existence of Private
Armies in the Country."7 The body, which was later on referred to as the Zeñarosa Commission,8 was
formed to investigate the existence of private army groups (PAGs) in the country with a view to
eliminating them before the 10 May 2010 elections and dismantling them permanently in the
future.9 Upon the conclusion of its investigation, the Zeñarosa Commission released and submitted to
the Office of the President a confidential report entitled "A Journey Towards H.O.P.E.: The
Independent Commission Against Private Armies’ Report to the President" (the Report).10

Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP–Ilocos Norte) conducted a
series of surveillance operations against her and her aides,11 and classified her as someone who
keeps a PAG.12 Purportedly without the benefit of data verification, PNP–Ilocos Norte forwarded the
information gathered on her to the Zeñarosa Commission,13 thereby causing her inclusion in the
Report’s enumeration of individuals maintaining PAGs.14 More specifically, she pointed out the
following items reflected therein:

(a) The Report cited the PNP as its source for the portion regarding the status of PAGs in the
Philippines.15

(b) The Report stated that "x x x the PNP organized one dedicated Special Task Group
(STG) for each private armed group (PAG) to monitor and counteract their activities."16

(c) Attached as Appendix "F" of the Report is a tabulation generated by the PNP and
captioned as "Status of PAGs Monitoring by STGs as of April 19, 2010," which classifies
PAGs in the country according to region, indicates their identity, and lists the prominent
personalities with whom these groups are associated.17 The first entry in the table names a
PAG, known as the Gamboa Group, linked to herein petitioner Gamboa.18
 (d) Statistics on the status of PAGs were based on data from the PNP, to wit:

The resolutions were the subject of a national press conference held in Malacañang on
March 24, 2010 at which time, the Commission was also asked to comment on the PNP
report that out of one hundred seventeen (117) partisan armed groups validated, twenty-four
(24) had been dismantled with sixty-seven (67) members apprehended and more than
eighty-six (86) firearms confiscated.

Commissioner Herman Basbaño qualified that said statistics were based on PNP data but
that the more significant fact from his report is that the PNP has been vigilant in monitoring
the activities of these armed groups and this vigilance is largely due to the existence of the
Commission which has continued communicating with the Armed Forces of the Philippines
(AFP) and PNP personnel in the field to constantly provide data on the activities of the
PAGs. Commissioner Basbaño stressed that the Commission’s efforts have preempted the
formation of the PAGs because now everyone is aware that there is a body monitoring the
PAGs movement through the PNP. Commissioner Lieutenant General Edilberto Pardo Adan
also clarified that the PAGs are being destabilized so that their ability to threaten and sow
fear during the election has been considerably weakened.19

(e) The Report briefly touched upon the validation system of the PNP:

Also, in order to provide the Commission with accurate data which is truly reflective of the situation in
the field, the PNP complied with the Commission’s recommendation that they revise their validation
system to include those PAGs previously listed as dormant. In the most recent briefing provided by
the PNP on April 26, 2010, there are one hundred seven (107) existing PAGs. Of these groups, the
PNP reported that seven (7) PAGs have been reorganized.20

On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion of the Report
naming Gamboa as one of the politicians alleged to be maintaining a PAG.21 Gamboa averred that
her association with a PAG also appeared on print media.22 Thus, she was publicly tagged as
someone who maintains a PAG on the basis of the unverified information that the PNP-Ilocos Norte
gathered and forwarded to the Zeñarosa Commission.23 As a result, she claimed that her malicious or
reckless inclusion in the enumeration of personalities maintaining a PAG as published in the Report
also made her, as well as her supporters and other people identified with her, susceptible to
harassment and police surveillance operations.24

Contending that her right to privacy was violated and her reputation maligned and destroyed,
Gamboa filed a Petition dated 9 July 2010 for the issuance of a writ of habeas data against
respondents in their capacities as officials of the PNP-Ilocos Norte.25 In her Petition, she prayed for
the following reliefs: (a) destruction of the unverified reports from the PNP-Ilocos Norte database; (b)
withdrawal of all information forwarded to higher PNP officials; (c) rectification of the damage done to
her honor; (d) ordering respondents to refrain from forwarding unverified reports against her; and (e)
restraining respondents from making baseless reports.26

The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13, which issued the
corresponding writ on 14 July 2010 after finding the Petition meritorious on its face.27 Thus, the trial
court (a) instructed respondents to submit all information and reports forwarded to and used by the
Zeñarosa Commission as basis to include her in the list of persons maintaining PAGs; (b) directed
respondents, and any person acting on their behalf, to cease and desist from forwarding to the
Zeñarosa Commission, or to any other government entity, information that they may have gathered
against her without the approval of the court; (c) ordered respondents to make a written return of the
writ together with supporting affidavits; and (d) scheduled the summary hearing of the case on 23
July 2010.28

In their Return of the Writ, respondents alleged that they had acted within the bounds of their
mandate in conducting the investigation and surveillance of Gamboa.29 The information stored in their
database supposedly pertained to two criminal cases in which she was implicated, namely: (a) a
Complaint for murder and frustrated murder docketed as NPS DOC No. 1-04-INQ-091-00077, and
(b) a Complaint for murder, frustrated murder and direct assault upon a person in authority, as well
as indirect assault and multiple attempted murder, docketed as NPS DOCKET No. 1-04-INV-10-A-
00009.30

Respondents likewise asserted that the Petition was incomplete for failing to comply with the
following requisites under the Rule on the Writ of Habeas Data: (a) the manner in which the right to
privacy was violated or threatened with violation and how it affected the right to life, liberty or security
of Gamboa; (b) the actions and recourses she took to secure the data or information; and (c) the
location of the files, registers or databases, the government office, and the person in charge, in
possession or in control of the data or information.31 They also contended that the Petition for Writ of
Habeas Data, being limited to cases of extrajudicial killings and enforced disappearances, was not
the proper remedy to address the alleged besmirching of the reputation of Gamboa.32

RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the Petition.33 The trial court
categorically ruled that the inclusion of Gamboa in the list of persons maintaining PAGs, as
published in the Report, constituted a violation of her right to privacy, to wit:

In this light, it cannot also be disputed that by her inclusion in the list of persons maintaining PAGs,
Gamboa’s right to privacy indubitably has been violated. The violation understandably affects her
life, liberty and security enormously. The untold misery that comes with the tag of having a PAG
could even be insurmountable. As she essentially alleged in her petition, she fears for her security
that at any time of the day the unlimited powers of respondents may likely be exercised to further
malign and destroy her reputation and to transgress her right to life.

By her inclusion in the list of persons maintaining PAGs, it is likewise undisputed that there was
certainly intrusion into Gamboa’s activities. It cannot be denied that information was gathered as
basis therefor. After all, under Administrative Order No. 275, the Zeñarosa Commission was tasked
to investigate the existence of private armies in the country, with all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987.

xxx xxx xxx

By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as she accused
respondents, who are public officials, of having gathered and provided information that made the
Zeñarosa Commission to include her in the list. Obviously, it was this gathering and forwarding of
information supposedly by respondents that petitioner barks at as unlawful. x x x.34

Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the ground that
Gamboa failed to prove through substantial evidence that the subject information originated from
respondents, and that they forwarded this database to the Zeñarosa Commission without the benefit
of prior verification.35 The trial court also ruled that even before respondents assumed their official
positions, information on her may have already been acquired.36 Finally, it held that the Zeñarosa
Commission, as the body tasked to gather information on PAGs and authorized to disclose
information on her, should have been impleaded as a necessary if not a compulsory party to the
Petition.37
Gamboa then filed the instant Appeal by Certiorari dated 24 September 2010,38 raising the following
assignment of errors:

1. The trial court erred in ruling that the Zeñarosa Commission be impleaded as either a
necessary or indispensable party;

2. The trial court erred in declaring that Gamboa failed to present sufficient proof to link
respondents as the informant to [sic] the Zeñarosa Commission;

3. The trial court failed to satisfy the spirit of Habeas Data;

4. The trial court erred in pronouncing that the reliance of the Zeñarosa Commission to [sic]
the PNP as alleged by Gamboa is an assumption;

5. The trial court erred in making a point that respondents are distinct to PNP as an agency.39

On the other hand, respondents maintain the following arguments: (a) Gamboa failed to present
substantial evidence to show that her right to privacy in life, liberty or security was violated, and (b)
the trial court correctly dismissed the Petition on the ground that she had failed to present sufficient
proof showing that respondents were the source of the report naming her as one who maintains a
PAG.40

Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the mandate to
dismantle PAGs in the country should be done in accordance with due process, such that the
gathering and forwarding of unverified information on her must be considered unlawful.41 She also
reiterates that she was able to present sufficient evidence showing that the subject information
originated from respondents.42

In determining whether Gamboa should be granted the privilege of the writ of habeas data, this
Court is called upon to, first, unpack the concept of the right to privacy; second, explain the writ of
habeas data as an extraordinary remedy that seeks to protect the right to informational privacy; and
finally, contextualize the right to privacy vis-à-vis the state interest involved in the case at bar.

The Right to Privacy

The right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional
right. This Court, in Morfe v. Mutuc,43 thus enunciated:

The due process question touching on an alleged deprivation of liberty as thus resolved goes a long
way in disposing of the objections raised by plaintiff that the provision on the periodical submission
of a sworn statement of assets and liabilities is violative of the constitutional right to privacy. There is
much to be said for this view of Justice Douglas: "Liberty in the constitutional sense must mean more
than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a
repository of freedom. The right to be let alone is indeed the beginning of all freedom." As a matter of
fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most comprehensive of
rights and the right most valued by civilized men."

The concept of liberty would be emasculated if it does not likewise compel respect for his personality
as a unique individual whose claim to privacy and interference demands respect. xxx.

xxx xxx xxx

x x x In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five members of
the Court, stated: "Various guarantees create zones of privacy. The right of association contained in
the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its
prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of
the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a
zone of privacy which government may not force him to surrender to his detriment. The Ninth
Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people." After referring to various American Supreme
Court decisions, Justice Douglas continued: "These cases bear witness that the right of privacy
which presses for recognition is a legitimate one."

xxx xxx xxx

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently
of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language
of Prof. Emerson is particularly apt: "The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the personal life of the citizen.
This is indeed one of the basic distinctions between absolute and limited government. Ultimate and
pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government, safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state can control. Protection of this
private sector — protection, in other words, of the dignity and integrity of the individual — has
become increasingly important as modern society has developed. All the forces of a technological
age — industrialization, urbanization, and organization — operate to narrow the area of privacy and
facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society."44 (Emphases
supplied)

In Ople v. Torres,45 this Court traced the constitutional and statutory bases of the right to privacy in
Philippine jurisdiction, to wit:

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and
enshrined in several provisions of our Constitution. It is expressly recognized in section 3 (1) of the
Bill of Rights:

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires otherwise as prescribed by law.

Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.
 xxx xxx xxx

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public health as may be provided by law.

xxx xxx xxx

Sec. 8. The right of the people, including those employed in the public and private sectors, to form
unions, associations, or societies for purposes not contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that
"every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and
other persons" and punishes as actionable torts several acts by a person of meddling and prying into
the privacy of another. It also holds a public officer or employee or any private individual liable for
damages for any violation of the rights and liberties of another person, and recognizes the privacy of
letters and other private communications. The Revised Penal Code makes a crime the violation of
secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion
of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits
Act and the Intellectual Property Code. The Rules of Court on privileged communication likewise
recognize the privacy of certain information.

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it is narrowly drawn. x x x.46 (Emphases supplied)

Clearly, the right to privacy is considered a fundamental right that must be protected from intrusion
or constraint. However, in Standard Chartered Bank v. Senate Committee on Banks,47 this Court
underscored that the right to privacy is not absolute, viz:

With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state
that privacy is not an absolute right. While it is true that Section 21, Article VI of the Constitution,
guarantees respect for the rights of persons affected by the legislative investigation, not every
invocation of the right to privacy should be allowed to thwart a legitimate congressional inquiry. In
Sabio v. Gordon, we have held that the right of the people to access information on matters of public
concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we
declared that the right to privacy is not absolute where there is an overriding compelling state
interest. Employing the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no
infringement of the individual’s right to privacy as the requirement to disclosure information is for a
valid purpose, in this case, to ensure that the government agencies involved in regulating banking
transactions adequately protect the public who invest in foreign securities. Suffice it to state that this
purpose constitutes a reason compelling enough to proceed with the assailed legislative
investigation.48

Therefore, when the right to privacy finds tension with a competing state objective, the courts are
required to weigh both notions. In these cases, although considered a fundamental right, the right to
privacy may nevertheless succumb to an opposing or overriding state interest deemed legitimate
and compelling.

The Writ of Habeas Data

The writ of habeas data is an independent and summary remedy designed to protect the image,
privacy, honor, information, and freedom of information of an individual, and to provide a forum to
enforce one’s right to the truth and to informational privacy.49 It seeks to protect a person’s right to
control information regarding oneself, particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful ends.50 It must be emphasized that in
order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy
on the one hand, and the right to life, liberty or security on the other. Section 1 of the Rule on the
Writ of Habeas Data reads:

Habeas data. – The writ of habeas data is a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the gathering, collecting or storing of data
information regarding the person, family, home and correspondence of the aggrieved party.

The notion of informational privacy is still developing in Philippine law and jurisprudence.
Considering that even the Latin American habeas data, on which our own Rule on the Writ of
Habeas Data is rooted, finds its origins from the European tradition of data protection,51 this Court can
be guided by cases on the protection of personal data decided by the European Court of Human
Rights (ECHR). Of particular note is Leander v. Sweden,52 in which the ECHR balanced the right of
citizens to be free from interference in their private affairs with the right of the state to protect its
national security. In this case, Torsten Leander (Leander), a Swedish citizen, worked as a temporary
replacement museum technician at the Naval Museum, which was adjacent to a restricted military
security zone.53 He was refused employment when the requisite personnel control resulted in an
unfavorable outcome on the basis of information in the secret police register, which was kept in
accordance with the Personnel Control Ordinance and to which he was prevented access.54 He
claimed, among others, that this procedure of security control violated Article 8 of the European
Convention of Human Rights55 on the right to privacy, as nothing in his personal or political
background would warrant his classification in the register as a security risk.56

The ECHR ruled that the storage in the secret police register of information relating to the private life
of Leander, coupled with the refusal to allow him the opportunity to refute the same, amounted to an
interference in his right to respect for private life.57 However, the ECHR held that the interference was
justified on the following grounds: (a) the personnel control system had a legitimate aim, which was
the protection of national security,58 and (b) the Personnel Control Ordinance gave the citizens
adequate indication as to the scope and the manner of exercising discretion in the collection,
recording and release of information by the authorities.59 The following statements of the ECHR must
be emphasized:

58. The notion of necessity implies that the interference corresponds to a pressing social
need and, in particular, that it is proportionate to the legitimate aim pursued (see, inter alia,
the Gillow judgment of 24 November 1986, Series A no. 109, p. 22, § 55).

59. However, the Court recognises that the national authorities enjoy a margin of
appreciation, the scope of which will depend not only on the nature of the legitimate aim
pursued but also on the particular nature of the interference involved. In the instant case, the
interest of the respondent State in protecting its national security must be balanced against
the seriousness of the interference with the applicant’s right to respect for his private life.

There can be no doubt as to the necessity, for the purpose of protecting national security, for the
Contracting States to have laws granting the competent domestic authorities power, firstly, to collect
and store in registers not accessible to the public information on persons and, secondly, to use this
information when assessing the suitability of candidates for employment in posts of importance for
national security.

Admittedly, the contested interference adversely affected Mr. Leander’s legitimate interests through
the consequences it had on his possibilities of access to certain sensitive posts within the public
service. On the other hand, the right of access to public service is not as such enshrined in the
Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series A no. 105, p. 20, §§ 34-
35), and, apart from those consequences, the interference did not constitute an obstacle to his
leading a private life of his own choosing.

In these circumstances, the Court accepts that the margin of appreciation available to the
respondent State in assessing the pressing social need in the present case, and in particular in
choosing the means for achieving the legitimate aim of protecting national security, was a wide one.

xxx xxx xxx

66. The fact that the information released to the military authorities was not communicated to Mr.
Leander cannot by itself warrant the conclusion that the interference was not "necessary in a
democratic society in the interests of national security", as it is the very absence of such
communication which, at least partly, ensures the efficacy of the personnel control procedure (see,
mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 27, § 58).

The Court notes, however, that various authorities consulted before the issue of the Ordinance of
1969, including the Chancellor of Justice and the Parliamentary Ombudsman, considered it
desirable that the rule of communication to the person concerned, as contained in section 13 of the
Ordinance, should be effectively applied in so far as it did not jeopardise the purpose of the control
(see paragraph 31 above).

67. The Court, like the Commission, thus reaches the conclusion that the safeguards contained in
the Swedish personnel control system meet the requirements of paragraph 2 of Article 8 (art. 8-2).
Having regard to the wide margin of appreciation available to it, the respondent State was entitled to
consider that in the present case the interests of national security prevailed over the individual
interests of the applicant (see paragraph 59 above). The interference to which Mr. Leander was
subjected cannot therefore be said to have been disproportionate to the legitimate aim pursued.
(Emphases supplied)

Leander illustrates how the right to informational privacy, as a specific component of the right to
privacy, may yield to an overriding legitimate state interest. In similar fashion, the determination of
whether the privilege of the writ of habeas data, being an extraordinary remedy, may be granted in
this case entails a delicate balancing of the alleged intrusion upon the private life of Gamboa and the
relevant state interest involved.

The collection and forwarding of information by the PNP vis-à-vis the interest of the state to
dismantle private armies.

The Constitution explicitly mandates the dismantling of private armies and other armed groups not
recognized by the duly constituted authority.60 It also provides for the establishment of one police
force that is national in scope and civilian in character, and is controlled and administered by a
national police commission.61
Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275 articulates a
legitimate state aim, which is to investigate the existence of PAGs with the ultimate objective of
dismantling them permanently.

To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it with the powers of an
investigative body, including the power to summon witnesses, administer oaths, take testimony or
evidence relevant to the investigation and use compulsory processes to produce documents, books,
and records.62 A.O. 275 likewise authorized the Zeñarosa Commission to deputize the Armed Forces
of the Philippines, the National Bureau of Investigation, the Department of Justice, the PNP, and any
other law enforcement agency to assist the commission in the performance of its functions.63

Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce all laws and
ordinances relative to the protection of lives and properties; (b) maintain peace and order and take
all necessary steps to ensure public safety; and (c) investigate and prevent crimes.64

Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and functions
accorded to the Zeñarosa Commission and the PNP, the latter collected information on individuals
suspected of maintaining PAGs, monitored them and counteracted their activities.65 One of those
individuals is herein petitioner Gamboa.

This Court holds that Gamboa was able to sufficiently establish that the data contained in the Report
listing her as a PAG coddler came from the PNP. Contrary to the ruling of the trial court, however,
the forwarding of information by the PNP to the Zeñarosa Commission was not an unlawful act that
violated or threatened her right to privacy in life, liberty or security.

The PNP was rationally expected to forward and share intelligence regarding PAGs with the body
specifically created for the purpose of investigating the existence of these notorious groups.
Moreover, the Zeñarosa Commission was explicitly authorized to deputize the police force in the
fulfillment of the former’s mandate, and thus had the power to request assistance from the latter.

Following the pronouncements of the ECHR in Leander, the fact that the PNP released information
to the Zeñarosa Commission without prior communication to Gamboa and without affording her the
opportunity to refute the same cannot be interpreted as a violation or threat to her right to privacy
since that act is an inherent and crucial component of intelligence-gathering and
investigation. Additionally, Gamboa herself admitted that the PNP had a validation system, which
1âw phi 1

was used to update information on individuals associated with PAGs and to ensure that the data
mirrored the situation on the field.66 Thus, safeguards were put in place to make sure that the
information collected maintained its integrity and accuracy.

Pending the enactment of legislation on data protection, this Court declines to make any further
determination as to the propriety of sharing information during specific stages of intelligence
gathering. To do otherwise would supplant the discretion of investigative bodies in the
accomplishment of their functions, resulting in an undue encroachment on their competence.

However, to accord the right to privacy with the kind of protection established in existing law and
jurisprudence, this Court nonetheless deems it necessary to caution these investigating entities that
information-sharing must observe strict confidentiality. Intelligence gathered must be released
exclusively to the authorities empowered to receive the relevant information. After all, inherent to the
right to privacy is the freedom from "unwarranted exploitation of one’s person or from intrusion into
one’s private activities in such a way as to cause humiliation to a person’s ordinary sensibilities."67
In this case, respondents admitted the existence of the Report, but emphasized its confidential
nature. That it was leaked to third parties and the media was regrettable, even warranting reproach.
1âwphi1

But it must be stressed that Gamboa failed to establish that respondents were responsible for this
unintended disclosure. In any event, there are other reliefs available to her to address the purported
damage to her reputation, making a resort to the extraordinary remedy of the writ of habeas data
unnecessary and improper.

Finally, this Court rules that Gamboa was unable to prove through substantial evidence that her
inclusion in the list of individuals maintaining PAGs made her and her supporters susceptible to
harassment and to increased police surveillance. In this regard, respondents sufficiently explained
that the investigations conducted against her were in relation to the criminal cases in which she was
implicated. As public officials, they enjoy the presumption of regularity, which she failed to overcome.

It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the
alleged intrusion on the private life of Gamboa, especially when the collection and forwarding by the
PNP of information against her was pursuant to a lawful mandate. Therefore, the privilege of the writ
of habeas data must be denied.

WHEREFORE, the instant petition for review is DENIED. The assailed Decision in Special Proc. No.
14979 dated 9 September 2010 of the Regional Trial Court, Laoag City, Br. 13, insofar as it denies
Gamboa the privilege of the writ of habeas data, is AFFIRMED.

SO ORDERED.

MARIA LOURDES P.A. SERENO

Associate justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice

(On official leave)

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE
Associate Justice CASTRO*
Associate Justice

(On leave) (On official business)

ARTURO D. BRION** DIOSDADO M. PERALTA***
Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice
 (On leave)
JOSE PORTUGAL PEREZ
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Footnotes

* On official leave.

** On leave.

*** On official business.

1
Sec. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme
Court under Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) working days from the date of notice of the
judgment or final order.

The appeal shall be given the same priority as in habeas corpus and amparo cases.

2
A.M. No. 08-1-06-SC, 22 January 2008.

3
Rollo, pp. 36-47; Decision dated 9 September 2010.

4
Id. at 47.

5
Id. at 4, Appeal by Certiorari.

6
Id. at 39-40, Decision; id. at 142-143, Affidavit of P/SSupt. Chan dated 21 July 2010; id. at
144-145, Affidavit of P/Supt. Fang dated 21 July 2010.

7
108 O.G. 310 (Jan., 2010).
8
Named after the Chairperson, retired Court of Appeals Associate Justice Monina Arevalo-
Zeñarosa. The other members of the body included Bishop Juan de Dios Pueblos, D.D.,
Alleem Mahmod Mala L. Adilao, (Ret.) General Virtus V. Gil, (Ret.) Lieutenant General
Edilberto Pardo Adan, (Ret.) Herman Zamora Basbaño, Dante Lazaro Jimenez, and General
Jaime Callada Echeverria(+). Rollo, pp. 292-299.

9
Supra note 7.

10
Rollo, pp. 287-563; rollo, p. 20, Appeal by Certiorari; rollo, p. 591, Comment.

11
Id. at 6, Appeal by Certiorari; id. at 51-52, Petition for the Writ of Habeas Data.

12
Id. at 20-23, Appeal by Certiorari; id. at 52, Petition for the Writ of Habeas Data.

13
Id.

14
Id. at 20-23, Appeal by Certiorari.

15
Id. at 20, Appeal by Certiorari; id. at 337, Report.

16
Id. at 20-21, Appeal by Certiorari; id. at 338, Report.

17
Id. at 21, Appeal by Certiorari; id. at 430-463, Appendix "F" of the Report.

18
Id. at 431, Appendix "F" of the Report.

19
Id. at 21-22, Appeal by Certiorari; id. at 348-349, Report.

20
Id. at 22, Appeal by Certiorari; id. at 364, Report.

The records refer to two different television news programs: the Position Paper indicates
21

TV Patrol World, while the Return of the Writ mentions Bandila; id. at 6-7, Appeal by
Certiorari; id. at 37, Decision; id. at 59, Affidavit of Demijon Castillo dated 9 July 2010; id. at
133, Return of the Writ; id. at 147-148, Position Paper of Gamboa; id. at 591, Comment.

22
Id. at 6-7, Appeal by Certiorari; id. at 166, Position Paper of Gamboa.

23
Id. at 52-53, Petition for the Writ of Habeas Data.

24
Id. at 52-54.

25
Id. at 48-58.

26
Id.

Id. at 113-114, Writ of Habeas Data dated 14 July 2010; id. at 115-117, Order dated 14 July
27

2010.

28
Id.
29
Id. at 118-145, Return of the Writ dated 22 July 2010.

30
Id. at 125.

31
Id. at 126-131.

32
Id. at 131-132.

33
Id. at 36-47, Decision.

34
Id. at 41-42.

35
Id. at 44.

36
Id. at 44-46.

37
Id. at 47.

38
Id. at 3-34.

39
Id. at 7-8, Appeal by Certiorari.

40
Id. at 589-622, Comment dated 3 January 2011.

41
Id. at 647-656, Reply dated 29 January 2012.

42
Id.

43
130 Phil. 415 (1968).

44
Id. at 433-436.

45
354 Phil. 948 (1998).

46
Id. at 972-975.

47
G.R. No. 167173, 27 December 2007, 541 SCRA 456.

48
Id. at 475-476 [citing Morfe v. Mutuc, supra note 43; Gordon v. Sabio, 535Phil. 687 (2006)].

49
Manila Electric Co. v. Lim, G.R. No. 184769, 5 October 2010, 632 SCRA 195, 202.

50
Roxas v. Arroyo, G.R. No. 189155, 7 September 2010, 630 SCRA 211, 239.

Guadamuz, A. "Habeas Data vs the European Data Protection Directive," 2001 (3) The
51

Journal of Information, Law and Technology (JILT).

<http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_3/guadamuz/>

52
26 March 1987, 9 EHRR 433.
53
Para. 10.

54
Paras. 12-13, 15-17, 19.

Article 8. 1. Everyone has the right to respect for his private and family life, his home and
55

his correspondence.

2. There shall be no interference by a public authority with the exercise of this right
except such as in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder of crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.

56
Para. 47.

57
Para. 48.

58
Para. 49.

59
Para. 56.

60
Constitution, Art. XVIII, Sec. 24.

61
Constitution, Art. XVI, Sec. 6.

62
A.O. 275, Sec. 5(a).

63
A.O. 275, Sec. 5(f).

Republic Act No. 6975, otherwise known as the Department of Interior and Local
64

Government Act of 1990, Sec. 24(a), (b), (c).

65
Rollo, p. 338; Report.

66
Id. at 21-22, Appeal by Certiorari; id. at 364, Report.

Social Justice Society v. Dangerous Drugs Board, G.R. Nos. 157870, 158633 and 161658,
67

3 November 2008, 570 SCRA 410, 431.

G.R. No. 79156 June 22, 1989

ISIDRO, ZENAIDA, IRWIN, ZENDA and DORNET, all surnamed ANIMOS, petitioners,
vs.
PHILIPPINE VETERANS AFFAIRS OFFICE, its Administrator, JUAN L. GACAD and THE
COURT OF APPEALS, respondents.

Duran and Associates for petitioners.

SARMIENTO, J.:

The Court grants this petition assailing the decision of the Court of Appeals. *

The case originated from a suit for mandamus commenced by the petitioners against the respondent, the Philippine Veterans Affairs Office,
to compel payment by the said respondent of full pension benefits, retroactive to 1947, under Republic Act No. 65 as amended. The
Regional Trial Court ** dismissed the case on the ground of lack of jurisdiction. The petitioners then appealed to the respondent, the Court of
Appeals, which however rendered an affirmance.

The antecedent facts are stated by the Solicitor General. We quote:

Isidro Animos is a veteran of World War II, having been a member of the USAFFE
and later of the guerilla forces during the war.

On October 18, 1946, Republic Act No. 65 was approved, providing for a Bill of
Rights for Officers and Enlisted Men of the Philippine Army, Recognized and
Deserving Guerilla Organizations, and Veterans of the Philippine Revolution. Section
9 thereof provides:

SEC. 9. The persons mentioned in sections one and two hereof who
are permanently incapacitated from work owing to sickness, disease,
or injuries sustained in line of duty, shall be given a life pension of fifty
pesos a month unless they are actually receiving a similar pension
from other Government funds, and shall receive, in addition, the
necessary hospitalization and medical care.

Pursuant to the above provision, Animos filed with the Philippine Veterans Board
(now Philippine Veterans Affairs Office, or PVAO for short) a claim for disability
pension benefit. Upon medical examination, Animos was found to have incurred
partial physical disability due to a gunshot wound, and was awarded 25% pension
benefit effective November 18, 1947, in the amount of P12.50 a month.

On June 21, 1957, Republic Act No. 1920 was approved amending Sec. 9 of Rep.
Act No. 65, which increased the life pension from P50.00 to P100.00, plus P10.00 a
month for each unmarried minor child below 18 years of age. Subsequently, on June
22, 1969, Rep. Act No. 5373 took effect which further amended said Sec. 9 and
increased the basic monthly pension from P100.00 to P200.00, plus P30.00 a month
for the wife and P30.00 a month for each unmarried child below 18 years.

It appears that on September 27, 1955, Animos filed an application for dependents'
pension benefits. The application was however disapproved on September 4, 1956,
on the ground that Animos was not totally incapacitated.
 Upon the required re-evaluation of his partial physical disability, Animos was re-rated
to be 30% disabled on November 25, 1964 and was correspondingly granted a
P30.00 monthly pension. Again, on August 4, 1970, Animos was re-rated to be 50%
disabled and was granted a P50.00 monthly pension. Reassessments made on April
22, 1975 and June 11, 1982 showed that Animos' partial disability remained
unchanged at 50%.

Animos' numerous written requests to be granted the maximum pension benefit as

well as dependents' pension benefits were all disapproved. Thus, on November 23,
1982, Animos, his wife and children filed a petition for mandamus with the then Court
of First Instance of Albay against the PVAO to compel that office to increase his
monthly pension, alleging that since the rules on disability rating of the latter are
contrary to law, Animos, who was granted a lifetime pension for his disability should
be paid the maximum pension benefits, including pension for his wife and minor
children. 1

In dismissing the petition, the trial court held that "should petitioner's claim be upheld for the
satisfaction of veteran's benefits for the years up to the present, or a period of about 40 years, the
defendant may not be in a position, legally and budgetary wise, to comply with the court's award as
sufficient treasury funds therefor could only be appropriated for that purpose by the legislature," 2 and
ruled that the petition was "in effect a money claim against the government" 3 over which it did not
have jurisdiction. In sustaining the trial court, the Court of Appeals added that mandamus does not
lie to interfere with discretion, and that the petitioner had failed to exhaust administrative remedies.

On the question of procedure, the controlling precedents are Begoso v. Chairman, Philippine
Veterans Administration 4 and Teoxon v. Members of the Board of Administrators, Philippine
Veterans Administration, 5 in which we held:

1. The fourth assignment of error assails what it considers to be the failing of the
lower court in not holding that the complaint in this case is in effect a suit against the
State which has not given its consent thereto. We have recently had occasion to
reaffirm the force and primacy of the doctrine of non-suability. It does not admit of
doubt, then, that if the suit were in fact against the State, the lower court should have
dismissed the complaint. Nor is it to be doubted that while ostensibly an action may
be against a public official, the defendant may in reality be the government. As a
result, it is equally well-settled that where a litigation may have adverse
consequences on the public treasury, whether in the disbursements of funds or loss
of property, the public official proceeded against not being liable in his personal
capacity, then the doctrine of non-suability may appropriately be invoked. It has no
application, however, where the suit against such a functionary had to be instituted
because of his failure to comply with the duty imposed by statute appropriating public
funds for the benefit of plaintiff or petitioner. Such is the present case.

The doctrine announced by us in Ruiz v. Cabahug finds relevance: "We hold that
under the facts and circumstances alleged in the amended complaint, which should
be taken on its face value, the suit is not one against the Government, or a claim
against it, but one against the officials to compel them to act in accordance with the
rights to be established by the contending architects, or to prevent them from making
payment and recognition until the contending architects have established their
respective rights and interests in the funds retained and in the credit for the work
done." As a matter of fact, in an earlier case where we sustained the power of a
private citizen claiming title to and right of possession of a certain property to sue an
 officer or agent of the government alleged to be illegally withholding the same, we
likewise expressed this caveat: "However, and this is important, where the judgment
in such a case would result not only in the recovery of possession of the property in
favor of said citizen but also in a charge against or financial liability to the
Government, then the suit should be regarded as one against the government itself,
and, consequently, it cannot prosper or be validly entertained by the courts except
with the consent of said Government.

2. Nor is the third assignment of error to the effect that the lower court did not require
appellee to exhaust his administrative remedies before coming to court any more
persuasive. An excerpt from the leading case of Gonzales v. Hechanova, the opinion
being penned by the present Chief Justice, clearly demonstrates why appellants'
argument in this respect is unavailing: "Respondents assail petitioner's right to the
reliefs prayed for because he 'has not exhausted all administrative remedies
available to him before coming to court. We have already held, however, that the
principle requiring the previous exhaustion of administrative remedies is not
applicable 'where the question in dispute is purely a legal one', or where the
controverted act is patently illegal or was performed without jurisdiction or in excess
of jurisdiction, or where the respondent is a department secretary, whose acts as an
alter-ego of the President bear the implied or assumed approval of the latter, unless
actually disapproved by him, or where there are circumstances indicating the
urgency of judicial intervention." The Gonzales doctrine, it is to be noted,
summarized the views announced in earlier cases. The list of subsequent cases
reiterating such a doctrine is quite impressive. To be more specific, where there is a
stipulation of facts, as in this case, the question before the lower court being solely
one of law and on the face of the decision, the actuation of appellants being patently
illegal, the doctrine of exhaustion of administrative remedies certainly does not come
into play. 6

Mandamus therefore lies, and failure to exhaust remedies is no defense against payment.

We come to the merits.

The denial of the petitioner's claim was predicated on the finding that his disabilities were, based on
the respondent's "Rules on Disability Ratings", partial rather than total, a condition that precludes
payment of maximum pension benefits. The petitioner submits that the very rating system adopted
by the respondent veterans' office is null and void.

The applicable provision is Section 9 of Republic Act No. 65, as amended, as follows:

SEC. 9. The persons mentioned in sections one and two hereof who are permanently
incapacitated from work owing to sickness, disease, or injuries sustained in line of
duty, shall be given a life pension of two hundred pesos a month, and thirty pesos a
month for his wife and each of his unmarried minor children below eighteen years of
age, unless they are actually receiving a similar pension from other Government
funds, and shall receive, in addition, the necessary hospitalization and medical care. 7

In Begoso, supra, as well as Teoxon, supra, this Court held that bare rules promulgated by the
Philippine Veterans Administration, now the Philippine Veterans' Affairs Office, cannot overrule the
mandate of statute, on the fundamental principle that "an administrative agency 'cannot amend an
act of Congress.' "8 In the case at bar, there is no gainsaying the fact that the petitioner had been
enjoying pension benefits, albeit partial, pursuant to the provisions of Section 9, supra, upon the
premise that he was qualified thereto. Hence, the Government must pay him maximum pension
benefits. The fact that his injuries, based on the respondent's ratings, have been classified as
"partial" cannot erase the equal fact that he is "permanently incapacitated" under the law. Section 9
refers simply to "permanent incapacity" and makes no distinctions as a condition sine qua non to
compensability. It does not require such an incapacity to be total or partial and neither does it
authorize the PVAO to make a gradation of injuries. It is axiomatic that where the law does not
distinguish, let no one distinguish. The classifications or ratings formulated by the respondent body
amount to an amendment of the law at the administrative level, and to that extent, they are null and
void.

The case of Board of administrators, PVA v. Agcaoili,9 which the Solicitor General invokes does not
apply. In that case, we denied pension for the plain reason that the applicant was not permanently
incapacitated. But we did not, consequently, uphold, expressly or by implication, the PVAO's rules in
said case, the applicant being disqualified in any event. If we did, it was because their validity was
not specifically challenged. Needless to state, we did not abandon either Begoso or Teoxon therein.

It is pure conjecture to say that the petitioner "had no more service-connected disability to hang on
and should not have been denied continued disability pension were it not for the compassionate
regard by respondents to the veterans of World War II." 10 The fact of the matter is that the
respondent had consistently paid the petitioner pension benefits for the past forty years, meaning to
say that he was (is) entitled thereto. It would be an act of injustice to deny him now what, by strong
constitutional presumptions, is due him.

Neither is it a matter of charity or compassion. The PVAO is vested with no discretion to deny
payment where payment is due and conversely, to pay when payment is not due.

"The State," declares the Constitution (1973), "shall establish, maintain, and ensure adequate social
services in the field of education, health, housing, employment, welfare, and social security to
guarantee the enjoyment by the people of a decent standard of living." 11 Under the present
Constitution, the State's concern for war veterans finds an even more emphatic expression:

SEC. 9. The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty through
policies that provides adequate social services, promote full employment, a rising
standard of living, and an improved quality of life for all . 12

xxx xxx xxx

SEC. 7. The State shall provide immediate and adequate care, benefits, and other
forms of assistance to war veterans and veterans of military campaigns, their
surviving spouses and orphans. Funds shall be provided therefor and due
consideration shall be given them in the disposition of agricultural lands of the public
domain and, in appropriate cases, in the utilization of natural resources. 13

In the face of clear State policy, the burden is consequently on the Government to show that the
applicant is not qualified for pension. The applicant enjoys a presumed qualification upon a simple
demonstration that he had fought in the war and had suffered a permanent incapacity as a result
thereof .

The records show that the petitioner suffered various injuries, in his ear arising from a bombing in
Atimonan, Quezon (where elements of the Japanese Imperial Army landed, after they had
established a beachhead at Vigan, Ilocos Sur, two days after the Pearl Harbor bombing which
commenced World War II in the Pacific area), and other parts of his body due to bullets and
bayonets. 14 There is no showing that his wounds have since healed. Hence, they are "permanent"
within the intendment of the veterans' Bill of Rights. As we said, the fact that they are partial rather
than total is of no moment. "Permanent incapacity", under Republic Act No. 65, contemplates an
injury or ailment sustained in battle, permanent or incurable in character, and such that it impedes
nominal work. But the statute does not require that the veteran be utterly unable to work by reason
of the injury or ailment, or otherwise, "totally disabled". To say that it does is to reduce the law into a
simple social security measure, similar to workmen's compensation, rather than an act of gratitude
by the State to the brave veterans of the last two wars in the country.

Further, to say that Republic Act No. 26 applies only to veterans totally disabled for work is to make
the Act the veterans' sole source of income (by virtue of the prohibition against multiple
compensations under Sections 9 and 10). Certainly, P230.00 a month 15 — the amount of pension
under the Act — is hardly "compensation" for any common tao, let alone a totally disabled citizen.
This could not have been the intent of the legislature.

The clear implication is that the PVAO may not rate disabilities in the same manner they are
evaluated under our laws on employees' compensation. So long as a veteran's incapacity is
permanent, the veteran is entitled to payment.

Alleged budgetary constraints or lack of appropriation are no obstacles to payment. In Español v.

Chairman, Philippine Veterans Administration,16 we ordered "the restoration of [the petitioner's]
monthly pension and her children's monthly dependent's pension provided for by R.A. No. 65, as
amended, the coverage of which Congress had already appropriated funds [for]." 17 The instant case
presents a similar situation. In asking for retroactive pension, what the petitioner in reality seeks is
the "restoration" of full pension benefits long denied him on account of the PVAO's improper
application of Republic Act No. 65, and the funds for which have been undoubtedly appropriated.

To the extent that this decision is incompatible with our decision in PVAO vs. Asterio Q. Tamayo,
promulgated on July 29, 1988, G.R. No. 74322, the latter is therefore considered changed.

The war veterans loom as the forgotten heroes of this generation. This is the reality both unfortunate
and tragic. What has been lost on many is the fact that it was because of their bravery and sacrifice
that we are a free people today.

They stand as shining mementos of our struggle for emancipation from the colonial yoke With crude
boloes and primitive spears but with abundant courage in their hearts they fought the white man's
arsenal of rifles and cannons, overcame it, and finished a revolution. They fought with no anticipation
of a prize, reward, or medal, but in obedient and unquestioning response to duty to country.

It was they who, four decades later, would lead the resistance against the Japanese invaders. Poorly
trained, fed, and equipped but encouraged by a firmness of will, they offered their lives and many
forfeited theirs — amid superior firepower from the enemy. Like the revolutionaries, they were not
conscripts but volunteers. And like them, they fought without any expectation of laurels or citations
but in order that liberty shall dawn upon the land.

The Court strongly stresses that Republic Act No. 65, the veterans' Bill of Rights, was not meant to
compensate alone veterans for the wounds of war. It is, above all, a gesture of gratitude on the part
of the State and a tribute to their gallantry and selfless love of country. Though valor cannot be
measured in terms of money, money is the best we can offer for the moment. And if we cannot do
more, let us do no less. This case should not have indeed reached this Court had not insensitivity
gotten the better of Government functionaries.
WHEREFORE, the petition is GRANTED.

The respondent, the Philippine Veterans Affairs Office, is ORDERED to pay the petitioner, his
spouse, and qualified children, full pension benefits plus such other and further increments as may
be provided for by law, effective November 18, 1947. No costs.

SO ORDERED.

Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Griño-Aquino,
Medialdea and Regalado, JJ., concur.

Separate Opinions

FERNAN, C.J., dissenting:

Without detracting from the great honor and gratitude our nation owes its war heroes and veterans I
regret that I am unable to concur with the opinion expressed by the majority relative to the power of
the Philippine Veterans Affairs Office PVAO to rate the disability or incapacity from work of war
veterans seeking entitlement to the pension benefits provided under Republic Act No. 65 and its
amendments.

As conceded in my earlier ponencia in G.R. No. 74322 entitled "The Philippine Veterans Affairs
Office vs. Asterio Q. Tamayo", promulgated on July 29, 1988, R.A. No. 65 itself did not contain a
disability rating schedule. However, it did repose upon the Philippine Veterans Board, predecessor
of the PVAO, rulemaking powers which by their tenor are sufficiently broad and encompassing to
include this authority to rate disabilities. Thus, from its enactment in 1946, or for more than forty (40)
years, the governmental agency specially created and charged with implementing the provisions of
R.A. No. 65 and its amendments, from the Philippine Veterans Board, the Philippine Veterans
Administration to the present PVAO had consistently done so in accordance with the assailed
disability rating schedule. Although technically not binding and controlling on the courts, the
construction given by the agency or entity charged with the enforcement of a statute should be given
great weight and respect (In re Allen, 2 Phil. 630, 640), particularly so if such construction, as in the
case at bar, has been uniform and consistent, and has been observed and acted on for a long period
of time (Molina vs. Rafferty 38 Phil. 167; Madrigal vs. Rafferty 38 Phil. 414; Philippine Sugar Central
vs. Collector of Customs, 51 Phil. 143).

Neither should we lose sight of the fact that the basic law, R.A. No. 65, has undergone a number of
amendments, without the legislature deeming it wise or proper to discontinue or proscribe this
practice of the implementing agency of rating the veterans' disabilities. This, to my mind, is a strong
indication, nay, conclusive proof that the construction given by the PVAO and its predecessors is in
accord with the legislative intent, for a basic rule in statutory construction is that the legislature is
presumed to know the effect which statutes originally had, and by re-enactment to intend that they
should again have the same effect (In re McCullough Dick, 39 Phil. 41). There is implied legislative
approval by the legislature's failure to change a longstanding administrative construction (Asturias
Sugar Central, Inc. vs. Commissioner of Customs, 29 SCRA 617).
It is regretable that the majority has missed the wisdom of the construction given by the veterans
board to Section 9 of R.A. No. 65, and the undeniable fact that it is through the veterans board's
authority to rate disabilities that the spirit and intent of the law are being given their most beneficial
effects. Note that Section 9 of R.A. No. 65 uses the phrase "permanently incapacitated from
work" as the qualifying condition for the full pension benefits provided thereunder. As stated in the
case of Board of Administrators vs. Agcaoili, 58 SCRA 72, these words "have a restrictive
signification which cannot be conveniently disregarded." An amendment, R.A. No. 5753 * enacted on
June 21, 1969, employs the equally restrictive term "totally disabled". The literal import flowing from the interchangeable and synonymous
use of the phrases "permanently incapacitated from work" and "total disability", is that the legislature intended to give the full amount of
pension benefits provided under the law only to war veterans who are permanently and totally unable to engage in any gainful occupation or
employment by reason of the sickness, disease or injury sustained in line of duty. The veterans board could have easily interpreted and
applied the law in this wise, but did not. It is to its great credit that giving due consideration to the spirit and intent of the law, rather than
adhering to its letters, the veterans board correctly construed the law as setting a maximum amount of pension benefits for the worst kind or
condition of incapacity from work (i.e., permanent), and leaving to the administering agency thru its ample rule-making powers the task of
providing for proportional benefits for corresponding varying degrees of incapacity or disability. Thus, it is thru the now assailed rating power
of the veterans board that less than permanently incapacited war veterans are enjoying the benefits, albeit partial, of the law, which a literal
reading thereof would seem to preclude.

In what it probably perceives as a most charitable and generous move, the majority lightly casts
aside the construction given and followed by the veterans board for more than 40 years. The
majority likewise completely failed to make the very crucial and significant distinction
between "permanent incapacity" and "permanent incapacity from work", and in the process,
unwittingly gave rise to an absurd, if not inequitable situation, in that all war veterans are deemed
entitled to the same amount of pension benefits regardless of the nature and effect of the sickness,
disease or injury sustained in line of duty. Certaintly, the legislature could not have intended such
patent inequality. It is safer and more logical to assume that the law intended to give equal benefits
to those similarly situated, a circumstance best attained through the adoption by the veterans board
of a standard classification of disability or incapacity.

Moreover, to entitle all war veterans to the full amount of pension benefits mentioned in the law
regardless of the extent of their disability would involve a staggering sum of money. While there is no
gainsaying that the amount prescribed by law is far from adequate, we must, however, realize that
the Philippines is a relatively poor country. It wants to reward its war heroes and veterans for their
valor and gallantry but harsh economic reality deters it from adequately doing so. It does what it can
under the circumstances, without the Judiciary adding to its financial troubles and burden through
what I firmly believe to be an unwarranted interpretation of a law.

Feliciano, J., concur.

NARVASA, J., dissenting:

I dissent and vote to adhere to the ruling in G.R. No. 74322 (Phil. Veterans Affairs Office v. Tamayo,
July 29, 1988.)

Separate Opinions

FERNAN, C.J., dissenting:

Without detracting from the great honor and gratitude our nation owes its war heroes and veterans I
regret that I am unable to concur with the opinion expressed by the majority relative to the power of
the Philippine Veterans Affairs Office PVAO to rate the disability or incapacity from work of war
veterans seeking entitlement to the pension benefits provided under Republic Act No. 65 and its
amendments.

As conceded in my earlier ponencia in G.R. No. 74322 entitled "The Philippine Veterans Affairs
Office vs. Asterio Q. Tamayo", promulgated on July 29, 1988, R.A. No. 65 itself did not contain a
disability rating schedule. However, it did repose upon the Philippine Veterans Board, predecessor
of the PVAO, rulemaking powers which by their tenor are sufficiently broad and encompassing to
include this authority to rate disabilities. Thus, from its enactment in 1946, or for more than forty (40)
years, the governmental agency specially created and charged with implementing the provisions of
R.A. No. 65 and its amendments, from the Philippine Veterans Board, the Philippine Veterans
Administration to the present PVAO had consistently done so in accordance with the assailed
disability rating schedule. Although technically not binding and controlling on the courts, the
construction given by the agency or entity charged with the enforcement of a statute should be given
great weight and respect (In re Allen, 2 Phil. 630, 640), particularly so if such construction, as in the
case at bar, has been uniform and consistent, and has been observed and acted on for a long period
of time (Molina vs. Rafferty 38 Phil. 167; Madrigal vs. Rafferty 38 Phil. 414; Philippine Sugar Central
vs. Collector of Customs, 51 Phil. 143).

Neither should we lose sight of the fact that the basic law, R.A. No. 65, has undergone a number of
amendments, without the legislature deeming it wise or proper to discontinue or proscribe this
practice of the implementing agency of rating the veterans' disabilities. This, to my mind, is a strong
indication, nay, conclusive proof that the construction given by the PVAO and its predecessors is in
accord with the legislative intent, for a basic rule in statutory construction is that the legislature is
presumed to know the effect which statutes originally had, and by re-enactment to intend that they
should again have the same effect (In re McCullough Dick, 39 Phil. 41). There is implied legislative
approval by the legislature's failure to change a longstanding administrative construction (Asturias
Sugar Central, Inc. vs. Commissioner of Customs, 29 SCRA 617).

It is regretable that the majority has missed the wisdom of the construction given by the veterans
board to Section 9 of R.A. No. 65, and the undeniable fact that it is through the veterans board's
authority to rate disabilities that the spirit and intent of the law are being given their most beneficial
effects. Note that Section 9 of R.A. No. 65 uses the phrase "permanently incapacitated from
work" as the qualifying condition for the full pension benefits provided thereunder. As stated in the
case of Board of Administrators vs. Agcaoili, 58 SCRA 72, these words "have a restrictive
signification which cannot be conveniently disregarded." An amendment, R.A. No. 5753 * enacted on
June 21, 1969, employs the equally restrictive term "totally disabled". The literal import flowing from the interchangeable and synonymous
use of the phrases "permanently incapacitated from work" and "total disability", is that the legislature intended to give the full amount of
pension benefits provided under the law only to war veterans who are permanently and totally unable to engage in any gainful occupation or
employment by reason of the sickness, disease or injury sustained in line of duty. The veterans board could have easily interpreted and
applied the law in this wise, but did not. It is to its great credit that giving due consideration to the spirit and intent of the law, rather than
adhering to its letters, the veterans board correctly construed the law as setting a maximum amount of pension benefits for the worst kind or
condition of incapacity from work (i.e., permanent), and leaving to the administering agency thru its ample rule-making powers the task of
providing for proportional benefits for corresponding varying degrees of incapacity or disability. Thus, it is thru the now assailed rating power
of the veterans board that less than permanently incapacited war veterans are enjoying the benefits, albeit partial, of the law, which a literal
reading thereof would seem to preclude.

In what it probably perceives as a most charitable and generous move, the majority lightly casts
aside the construction given and followed by the veterans board for more than 40 years. The
majority likewise completely failed to make the very crucial and significant distinction
between "permanent incapacity" and "permanent incapacity from work", and in the process,
unwittingly gave rise to an absurd, if not inequitable situation, in that all war veterans are deemed
entitled to the same amount of pension benefits regardless of the nature and effect of the sickness,
disease or injury sustained in line of duty. Certaintly, the legislature could not have intended such
patent inequality. It is safer and more logical to assume that the law intended to give equal benefits
to those similarly situated, a circumstance best attained through the adoption by the veterans board
of a standard classification of disability or incapacity.

Moreover, to entitle all war veterans to the full amount of pension benefits mentioned in the law
regardless of the extent of their disability would involve a staggering sum of money. While there is no
gainsaying that the amount prescribed by law is far from adequate, we must, however, realize that
the Philippines is a relatively poor country. It wants to reward its war heroes and veterans for their
valor and gallantry but harsh economic reality deters it from adequately doing so. It does what it can
under the circumstances, without the Judiciary adding to its financial troubles and burden through
what I firmly believe to be an unwarranted interpretation of a law.

Feliciano, J., concur.

NARVASA, J., dissenting:

I dissent and vote to adhere to the ruling in G.R. No. 74322 (Phil. Veterans Affairs Office v. Tamayo,
July 29, 1988.)

Footnotes

* CA-G.R. SP No. 10496, Eleventh Division: Francisco, Ricardo, J., Lombos de la

Fuente, Lorna and Benipayo, Alfredo, JJ., Concurring.

** Regional Trial Court, Fifth Judicial Region, Branch VII, Legaspi City; Hon.
Domingo Reyes, Presiding Judge.

1 Rollo, 68-71.

2 Id., 18.

3 Id.

4 No L-25916, April 30, 1970, 32 SCRA 466.

5 No. L-25619, June 30, 1970, 33 SCRA 585.

6 Begoso v. Chairman, Philippine Veterans Administration, 471474. With respect to

the defense of prescription, see Espanol v. Chairman, Philippine Veterans
Administration, No. L-44616, June 29, 1985, 137 SCRA 314.

7 II PPGS (Rev. Ed.) 468; emphasis in original.

8 Teoxon v. Members of the Board of Administrators, Philippine Veterans

Administration, 589.

9 No. L-38129, July 23, 1974, 58 SCRA 72.

10 Rollo, Id., 32; emphasis supplied.

11 CONST. (1973), art. II, sec. 7.

12 CONST. (1987), art. II, sec. 9.

13 Supra, art. XVI, sec. 7.

14 Rollo, Id., 16.

15 P200.00 a month for the veteran and P30.00 a month for his spouse for each
unmarried child.

16 Supra.

17 Supra, 320.

Fernan, C.J:

* RA. 5753 is entitled, "AN ACT FURTHER AMENDING REPUBLIC ACT NUMBER
SIXTY FIVE, AS AMENDED, BY INCREASING THE PENSION OF TOTALLY
DISABLED VETERANS OF WORLD WAR II AND THEIR LIVING DEPENDENTS."
G.R. No. 168338 February 15, 2008

FRANCISCO CHAVEZ, petitioner,

vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and
NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents.

DECISION

PUNO, C.J.:

A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into
the right to free speech and free expression, that any attempt to restrict it must be met with an
examination so critical that only a danger that is clear and present would be allowed to curtail it.

Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down
laws and issuances meant to curtail this right, as in Adiong v. COMELEC,1 Burgos v. Chief of
Staff,2 Social Weather Stations v. COMELEC,3 and Bayan v. Executive Secretary Ermita.4 When on
its face, it is clear that a governmental act is nothing more than a naked means to prevent the free
exercise of speech, it must be nullified.

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local elections.
On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to
destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly
between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the
Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-
tapping.5 Later, in a Malacañang press briefing, Secretary Bunye produced two versions of the tape,
one supposedly the complete version, and the other, a spliced, "doctored" or altered version, which
would suggest that the President had instructed the COMELEC official to manipulate the election
results in the President’s favor. 6 It seems that Secretary Bunye admitted that the voice was that of
President Arroyo, but subsequently made a retraction. 7

2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia,
subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were
purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC
Commissioner Garcillano, and the late Senator Barbers.8

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned
reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing
its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary
Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were
committing a continuing offense, subject to arrest by anybody who had personal knowledge if the
crime was committed or was being committed in their presence.9

4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of
Investigation (NBI) to go after media organizations "found to have caused the spread, the playing
and the printing of the contents of a tape" of an alleged wiretapped conversation involving the
President about fixing votes in the 2004 national elections. Gonzales said that he was going to start
with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network,
because by the very nature of the Internet medium, it was able to disseminate the contents of the
tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net
and GMA7 to a probe, and supposedly declared, "I [have] asked the NBI to conduct a tactical
interrogation of all concerned." 10

5. On June 11, 2005, the NTC issued this press release: 11

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO

OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM
STANDARDS

xxx xxx xxx

Taking into consideration the country’s unusual situation, and in order not to unnecessarily
aggravate the same, the NTC warns all radio stations and television network
owners/operators that the conditions of the authorization and permits issued to them by
Government like the Provisional Authority and/or Certificate of Authority explicitly provides
that said companies shall not use [their] stations for the broadcasting or telecasting of false
information or willful misrepresentation. Relative thereto, it has come to the attention of the
[NTC] that certain personalities are in possession of alleged taped conversations which they
claim involve the President of the Philippines and a Commissioner of the COMELEC
regarding supposed violation of election laws.

These personalities have admitted that the taped conversations are products of illegal
wiretapping operations.

Considering that these taped conversations have not been duly authenticated nor could it be
said at this time that the tapes contain an accurate or truthful representation of what was
recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the
said taped conversations by radio and television stations is a continuing violation of the Anti-
Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of
Authority issued to these radio and television stations. It has been subsequently established
that the said tapes are false and/or fraudulent after a prosecution or appropriate
investigation, the concerned radio and television companies are hereby warned that their
broadcast/airing of such false information and/or willful misrepresentation shall be
just cause for the suspension, revocation and/or cancellation of the licenses or
authorizations issued to the said companies.

In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program
standards to be observed by radio and television stations. NTC Memorandum Circular 111-
12-85 explicitly states, among others, that "all radio broadcasting and television stations
shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or
other matters being broadcast or telecast the tendency thereof is to disseminate false
information or such other willful misrepresentation, or to propose and/or incite treason,
rebellion or sedition." The foregoing directive had been reiterated by NTC Memorandum
Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television
stations from using their stations to broadcast or telecast any speech, language or scene
disseminating false information or willful misrepresentation, or inciting, encouraging or
assisting in subversive or treasonable acts.
 The [NTC] will not hesitate, after observing the requirements of due process, to apply
with full force the provisions of said Circulars and their accompanying sanctions on
erring radio and television stations and their owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga
Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate
the constitutional freedom of speech, of expression, and of the press, and the right to information.
Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: 12

 NTC respects and will not hinder freedom of the press and the right to information on matters
of public concern. KBP & its members have always been committed to the exercise of press
freedom with high sense of responsibility and discerning judgment of fairness and honesty.
 NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press
freedom or censorship. The NTC further denies and does not intend to limit or restrict the
interview of members of the opposition or free expression of views.
 What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
 KBP has program standards that KBP members will observe in the treatment of news and
public affairs programs. These include verification of sources, non-airing of materials that
would constitute inciting to sedition and/or rebellion.
 The KBP Codes also require that no false statement or willful misrepresentation is made in
the treatment of news or commentaries.
 The supposed wiretapped tapes should be treated with sensitivity and handled responsibly
giving due consideration to the process being undertaken to verify and validate the
authenticity and actual content of the same."

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary
Gonzales and the NTC, "praying for the issuance of the writs of certiorari and prohibition, as
extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of authority by the respondents."13

Alleging that the acts of respondents are violations of the freedom on expression and of the press,
and the right of the people to information on matters of public concern,14 petitioner specifically asked
this Court:

[F]or [the] nullification of acts, issuances, and orders of respondents committed or made
since June 6, 2005 until the present that curtail the public’s rights to freedom of expression
and of the press, and to information on matters of public concern specifically in relation to
information regarding the controversial taped conversion of President Arroyo and for
prohibition of the further commission of such acts, and making of such issuances, and orders
by respondents. 15

Respondents16 denied that the acts transgress the Constitution, and questioned petitioner’s legal
standing to file the petition. Among the arguments they raised as to the validity of the "fair warning"
issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared
to print media, and the warning was issued pursuant to the NTC’s mandate to regulate the
telecommunications industry. 17 It was also stressed that "most of the [television] and radio stations
continue, even to this date, to air the tapes, but of late within the parameters agreed upon between
the NTC and KBP." 18

D. The Procedural Threshold: Legal Standing

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner,
who is not a member of the broadcast media, prays that we strike down the acts and statements
made by respondents as violations of the right to free speech, free expression and a free press. For
another, the recipients of the press statements have not come forward—neither intervening nor
joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent
NTC that does not complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege
"such a personal stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the Court so largely depends for illumination
of difficult constitutional questions." 19

But as early as half a century ago, we have already held that where serious constitutional questions
are involved, "the transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside if we must, technicalities of
procedure." 20 Subsequently, this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal questions that greatly impact
on public interest,21 in keeping with the Court's duty under the 1987 Constitution to determine
whether or not 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.

Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of
overarching significance to our society,22 we therefore brush aside technicalities of procedure and
take cognizance of this petition,23 seeing as it involves a challenge to the most exalted of all the civil
rights, the freedom of expression. The petition raises other issues like the extent of the right to
information of the public. It is fundamental, however, that we need not address all issues but
only the most decisive one which in the case at bar is whether the acts of the respondents
abridge freedom of speech and of the press.

But aside from the primordial issue of determining whether free speech and freedom of the
press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill
the essence of freedom of speech and of the press now beclouded by the vagaries of
motherhood statements; (2) to clarify the types of speeches and their differing restraints
allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and
content-based regulations and their constitutional standard of review; (4) to examine the
historical difference in the treatment of restraints between print and broadcast media and
stress the standard of review governing both; and (5) to call attention to the ongoing blurring
of the lines of distinction between print and broadcast media.

E. Re-examining The law on freedom of speech,

of expression and of the press

No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.24

Freedom of expression has gained recognition as a fundamental principle of every democratic

government, and given a preferred right that stands on a higher level than substantive economic
freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution,
copied almost verbatim from the First Amendment of the U.S. Bill of Rights,25 were considered the
necessary consequence of republican institutions and the complement of free speech.26 This
preferred status of free speech has also been codified at the international level, its recognition now
enshrined in international law as a customary norm that binds all nations.27

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental
postulate of our constitutional system. 28 This right was elevated to constitutional status in the 1935,
the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal,
that freedom of speech is an indispensable condition for nearly every other form of
freedom.29 Moreover, our history shows that the struggle to protect the freedom of speech,
expression and the press was, at bottom, the struggle for the indispensable preconditions for the
exercise of other freedoms.30 For it is only when the people have unbridled access to information and
the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of
Thomas Jefferson, we cannot both be free and ignorant.

E.1. Abstraction of Free Speech

Surrounding the freedom of speech clause are various concepts that we have adopted as part and
parcel of our own Bill of Rights provision on this basic freedom.31 What is embraced under this
provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, 32 in
which it was held:

…At the very least, free speech and free press may be identified with the liberty to discuss
publicly and truthfully any matter of public interest without censorship and punishment. There
is to be no previous restraint on the communication of views or subsequent liability whether
in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless
there be a clear and present danger of substantive evil that Congress has a right to
prevent. 33

Gonzales further explained that the vital need of a constitutional democracy for freedom of
expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the
truth; of assuring participation by the people in social, including political, decision-making; and of
maintaining the balance between stability and change.34As early as the 1920s, the trend as reflected
in Philippine and American decisions was to recognize the broadest scope and assure the widest
latitude for this constitutional guarantee. The trend represents a profound commitment to the
principle that debate on public issue should be uninhibited, robust, and wide-open. 35

Freedom of speech and of the press means something more than the right to approve existing
political beliefs or economic arrangements, to lend support to official measures, and to take refuge in
the existing climate of opinion on any matter of public consequence.36 When atrophied, the right
becomes meaningless.37 The right belongs as well -- if not more – to those who question, who do not
conform, who differ.38 The ideas that may be expressed under this freedom are confined not only to
those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech
and of the press should allow and even encourage the articulation of the unorthodox view, though it
be hostile to or derided by others; or though such view "induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger."39 To paraphrase Justice
Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. 40

The scope of freedom of expression is so broad that it extends protection to nearly all forms of
communication. It protects speech, print and assembly regarding secular as well as political causes,
and is not confined to any particular field of human interest. The protection covers myriad matters of
public interest or concern embracing all issues, about which information is needed or appropriate, so
as to enable members of society to cope with the exigencies of their period. The constitutional
protection assures the broadest possible exercise of free speech and free press for religious,
political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic
guarantee of freedom to advocate ideas is not confined to the expression of ideas that are
conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection afforded free
speech extends to speech or publications that are entertaining as well as instructive or informative.
Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,41 this Court stated that all forms
of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of
speech and of expression.

While all forms of communication are entitled to the broad protection of freedom of expression
clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope
than the freedom accorded to newspapers and other print media, as will be subsequently
discussed.

E.2. Differentiation: The Limits & Restraints of Free Speech

From the language of the specific constitutional provision, it would appear that the right to free
speech and a free press is not susceptible of any limitation. But the realities of life in a complex
society preclude a literal interpretation of the provision prohibiting the passage of a law that would
abridge such freedom. For freedom of expression is not an absolute, 42 nor is it an "unbridled license
that gives immunity for every possible use of language and prevents the punishment of those who
abuse this freedom."

Thus, all speech are not treated the same. Some types of speech may be subjected to some
regulation by the State under its pervasive police power, in order that it may not be injurious to the
equal right of others or those of the community or society.43 The difference in treatment is expected
because the relevant interests of one type of speech, e.g., political speech, may vary from those of
another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis,
and evaluation of the permissible scope of restrictions on various categories of speech. 44 We have
ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as
"fighting words" are not entitled to constitutional protection and may be penalized.45

Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and
so on) have been applied differently to each category, either consciously or unconsciously. 46 A study
of free speech jurisprudence—whether here or abroad—will reveal that courts have developed
different tests as to specific types or categories of speech in concrete situations; i.e., subversive
speech; obscene speech; the speech of the broadcast media and of the traditional print media;
libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic
speech; speech that affects the right to a fair trial; and speech associated with rights of assembly
and petition. 47

Generally, restraints on freedom of speech and expression are evaluated by either or a combination
of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once
a rational connection has been established between the speech restrained and the danger
contemplated; 48 (b) the balancing of interests tests,used as a standard when courts need to
balance conflicting social values and individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a given situation of type of situation; 49 and
(c) the clear and present danger rule which rests on the premise that speech may be restrained
because there is substantial danger that the speech will likely lead to an evil the government has a
right to prevent. This rule requires that the evil consequences sought to be prevented must be
substantive, "extremely serious and the degree of imminence extremely high." 50
As articulated in our jurisprudence, we have applied either the dangerous tendency
doctrine or clear and present danger test to resolve free speech challenges. More recently, we
have concluded that we have generally adhered to the clear and present danger test. 51

E.3. In Focus: Freedom of the Press

Much has been written on the philosophical basis of press freedom as part of the larger right of free
discussion and expression. Its practical importance, though, is more easily grasped. It is the chief
source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle
of opinion on public questions. It is the instrument by which citizens keep their government informed
of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep
government responsible and efficient. Without a vigilant press, the mistakes of every administration
would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v.
Bustos:52

The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear
conscience.

Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed,
the press benefits from certain ancillary rights. The productions of writers are classified as
intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to
maintain a periodical publication are liable for damages, be they private individuals or public officials.

E.4. Anatomy of Restrictions: Prior Restraint, Content-Neutral and Content-Based

Regulations

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized
four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from
punishment subsequent to publication; 53 (3) freedom of access to information; 54 and (4) freedom of
circulation.55

Considering that petitioner has argued that respondents’ press statement constitutes a form of
impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of
content-based (as distinguished from content-neutral) regulations.

At this point, it should be noted that respondents in this case deny that their acts constitute prior
restraints. This presents a unique tinge to the present challenge, considering that the cases in our
jurisdiction involving prior restrictions on speech never had any issue of whether the governmental
act or issuance actually constituted prior restraint. Rather, the determinations were always about
whether the restraint was justified by the Constitution.

Be that as it may, the determination in every case of whether there is an impermissible restraint on
the freedom of speech has always been based on the circumstances of each case, including the
nature of the restraint. And in its application in our jurisdiction, the parameters of this principle
have been etched on a case-to-case basis, always tested by scrutinizing the governmental
issuance or act against the circumstances in which they operate, and then determining the
appropriate test with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or other forms of expression
in advance of actual publication or dissemination.56 Freedom from prior restraint is largely freedom
from government censorship of publications, whatever the form of censorship, and regardless of
whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it
precludes governmental acts that required approval of a proposal to publish; licensing or permits as
prerequisites to publication including the payment of license taxes for the privilege to publish; and
even injunctions against publication. Even the closure of the business and printing offices of certain
newspapers, resulting in the discontinuation of their printing and publication, are deemed as
previous restraint or censorship. 57 Any law or official that requires some form of permission to be
had before publication can be made, commits an infringement of the constitutional right, and remedy
can be had at the courts.

Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on
speech, and any act that restrains speech is presumed invalid,58 and "any act that restrains speech
is hobbled by the presumption of invalidity and should be greeted with furrowed brows," 59 it is
important to stress not all prior restraints on speech are invalid. Certain previous restraints may
be permitted by the Constitution, but determined only upon a careful evaluation of the challenged
act as against the appropriate test by which it should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint
on freedom of speech. A distinction has to be made whether the restraint is (1) a content-
neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely
controls the time, place or manner, and under well defined standards;60 or (2) a content-
based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or
speech. 61 The cast of the restriction determines the test by which the challenged act is assayed
with.

When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity.62 Because regulations of this type are not designed
to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but
an intermediate approach—somewhere between the mere rationality that is required of any other
law and the compelling interest standard applied to content-based restrictions.63 The test is
called intermediate because the Court will not merely rubberstamp the validity of a law but also
require that the restrictions be narrowly-tailored to promote an important or significant governmental
interest that is unrelated to the suppression of expression. The intermediate approach has been
formulated in this manner:

A governmental regulation is sufficiently justified if it is within the constitutional power of the

Government, if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the incident
restriction on alleged [freedom of speech & expression] is no greater than is essential to the
furtherance of that interest. 64

On the other hand, a governmental action that restricts freedom of speech or of the press based on
content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the
challenged act has overcome the clear and present danger rule will it pass constitutional
muster,65 with the government having the burden of overcoming the presumed unconstitutionality.

Unless the government can overthrow this presumption, the content-based restraint will be struck
down.66
With respect to content-based restrictions, the government must also show the type of harm the
speech sought to be restrained would bring about— especially the gravity and the imminence of the
threatened harm – otherwise the prior restraint will be invalid. Prior restraint on speech based on its
content cannot be justified by hypothetical fears, "but only by showing a substantive and imminent
evil that has taken the life of a reality already on ground."67 As formulated, "the question in every
case is whether the words used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive evils that Congress has
a right to prevent. It is a question of proximity and degree."68

The regulation which restricts the speech content must also serve an important or substantial
government interest, which is unrelated to the suppression of free expression. 69

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance
of that interest. 70 A restriction that is so broad that it encompasses more than what is required to
satisfy the governmental interest will be invalidated. 71 The regulation, therefore, must be reasonable
and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. 72

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an

intermediate review. A content-based regulation,73 however, bears a heavy presumption of invalidity
and is measured against the clear and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad
nor vague. 74

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to
the clear and present danger rule, as they are content-based restrictions. The acts of
respondents focused solely on but one object—a specific content— fixed as these were on the
alleged taped conversations between the President and a COMELEC official. Undoubtedly these did
not merely provide regulations as to the time, place or manner of the dissemination of speech or
expression.

E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents’ argument that the challenged act is valid on the ground that broadcast
media enjoys free speech rights that are lesser in scope to that of print media. We next explore and
test the validity of this argument, insofar as it has been invoked to validate a content-based
restriction on broadcast media.

The regimes presently in place for each type of media differ from one other. Contrasted with
the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting,
film and video have been subjected to regulatory schemes.

The dichotomy between print and broadcast media traces its origins in the United States. There,
broadcast radio and television have been held to have limited First Amendment protection,75 and
U.S. Courts have excludedbroadcast media from the application of the "strict scrutiny" standard that
they would otherwise apply to content-based restrictions.76 According to U.S. Courts, the three
major reasons why broadcast media stands apart from print media are: (a) the scarcity of the
frequencies by which the medium operates [i.e., airwaves are physically limited while print medium
may be limitless]; 77 (b) its "pervasiveness" as a medium; and (c) its unique accessibility to
children.78 Because cases involving broadcast media need not follow "precisely the same approach
that [U.S. courts] have applied to other media," nor go "so far as to demand that such regulations
serve ‘compelling’ government interests,"79 they are decided on whether the "governmental
restriction" is narrowly tailored to further a substantial governmental interest,"80 or the
intermediate test.

As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in

treatment between broadcast and print media. Nevertheless, a review of Philippine case law on
broadcast media will show that—as we have deviated with the American conception of the
Bill of Rights81— we likewise did not adopt en masse the U.S. conception of free speech as it
relates to broadcast media, particularly as to which test would govern content-based prior
restraints.

Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the
main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print
media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and
inciting speech), or is based on a compelling government interest that also has constitutional
protection, such as national security or the electoral process.

Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has
consistently held that the clear and present danger test applies to content-based restrictions on
media, without making a distinction as to traditional print or broadcast media.

The distinction between broadcast and traditional print media was first enunciated in Eastern
Broadcasting Corporation (DYRE) v. Dans,82 wherein it was held that "[a]ll forms of media, whether
print or broadcast, are entitled to the broad protection of the freedom of speech and expression
clause. The test for limitations on freedom of expression continues to be the clear and present
danger rule…"83

Dans was a case filed to compel the reopening of a radio station which had been summarily closed
on grounds of national security. Although the issue had become moot and academic because the
owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case
and made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-
judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered
in cases involving broadcast media. Thus:84

xxx xxx xxx

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the
freedom of speech and expression clause. The test for limitations on freedom of
expression continues to be the clear and present danger rule, that words are used in
such circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that the lawmaker has a right to prevent, In
his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M.
Fernando cites at least nine of our decisions which apply the test. More recently, the clear
and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v.
Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic
and all embracing interpretation applicable to all utterances in all forums.

Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified

users. A broadcast corporation cannot simply appropriate a certain frequency without regard
for government regulation or for the rights of others.
All forms of communication are entitled to the broad protection of the freedom of expression
clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat
lesser in scope than the freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438

U.S. 726), confronted with a patently offensive and indecent regular radio program,
explained why radio broadcasting, more than other forms of communications, receives the
most limited protection from the free expression clause. First, broadcast media have
established a uniquely pervasive presence in the lives of all citizens, Material presented over
the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second,
broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may
be prohibited from making certain material available to children, but the same selectivity
cannot be done in radio or television, where the listener or viewer is constantly tuning in and
out.

Similar considerations apply in the area of national security.

The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there
are low income masses who find the cost of books, newspapers, and magazines beyond
their humble means. Basic needs like food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or
regional audience of listeners including the indifferent or unwilling who happen to be within
reach of a blaring radio or television set. The materials broadcast over the airwaves reach
every person of every age, persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive
speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful
and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity
to cogitate analyze, and reject the utterance.

(5) The clear and present danger test, therefore, must take the particular circumstances of
broadcast media into account. The supervision of radio stations-whether by government or
through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated
handling.

The government has a right to be protected against broadcasts which incite the listeners to
violently overthrow it. Radio and television may not be used to organize a rebellion or to
signal the start of widespread uprising. At the same time, the people have a right to be
informed. Radio and television would have little reason for existence if broadcasts are limited
to bland, obsequious, or pleasantly entertaining utterances. Since they are the most
convenient and popular means of disseminating varying views on public issues, they also
deserve special protection.

(6) The freedom to comment on public affairs is essential to the vitality of a representative
democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already
stressing that.

The interest of society and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the
 case of free speech. The sharp incision of its probe relieves the abscesses of officialdom.
Men in public life may suffer under a hostile and an unjust accusation; the wound can be
assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned
with reference to comment upon his official acts. Only thus can the intelligence and dignity of
the individual be exalted.

(7) Broadcast stations deserve the special protection given to all forms of media by the due
process and freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to
justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but
only after categorically declaring that "the test for limitations on freedom of expression
continues to be the clear and present danger rule," for all forms of media, whether print or
broadcast. Indeed, a close reading of the above-quoted provisions would show that the
differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed
as "unprotected speech" (e.g., obscenity, national security, seditious and inciting speech), or to
validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies,
which is absent in print media. Thus, when this Court declared in Dans that the freedom given to
broadcast media was "somewhat lesser in scope than the freedom accorded to newspaper and print
media," it was not as to what test should be applied, but the context by which requirements of
licensing, allocation of airwaves, and application of norms to unprotected speech. 85

In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,86 that
the test to determine free expression challenges was the clear and present danger, again without
distinguishing the media.87Katigbak, strictly speaking, does not treat of broadcast media but motion
pictures. Although the issue involved obscenity standards as applied to movies,88 the Court
concluded its decision with the following obiter dictum that a less liberal approach would be used to
resolve obscenity issues in television as opposed to motion pictures:

All that remains to be said is that the ruling is to be limited to the concept of obscenity
applicable to motion pictures. It is the consensus of this Court that where television is
concerned, a less liberal approach calls for observance. This is so because unlike motion
pictures where the patrons have to pay their way, television reaches every home where there
is a set. Children then will likely be among the avid viewers of the programs therein
shown…..It cannot be denied though that the State as parens patriae is called upon to
manifest an attitude of caring for the welfare of the young.

More recently, in resolving a case involving the conduct of exit polls and dissemination of the results
by a broadcast company, we reiterated that the clear and present danger rule is the test we
unquestionably adhere to issues that involve freedoms of speech and of the press.89

This is not to suggest, however, that the clear and present danger rule has been applied to all
cases that involve the broadcast media. The rule applies to all media, including broadcast, but
only when the challenged act is a content-based regulation that infringes on free speech, expression
and the press. Indeed, in Osmena v. COMELEC,90 which also involved broadcast media, the Court
refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of
advertising of political advertisements because the challenged restriction was content-neutral.91 And
in a case involving due process and equal protection issues, the Court in Telecommunications and
Broadcast Attorneys of the Philippines v. COMELEC92 treated a restriction imposed on a broadcast
media as a reasonable condition for the grant of the media’s franchise, without going into which test
would apply.
That broadcast media is subject to a regulatory regime absent in print media is observed also in
other jurisdictions, where the statutory regimes in place over broadcast media include elements of
licensing, regulation by administrative bodies, and censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a
number of respects, but have a common historical basis. The stricter system of controls
seems to have been adopted in answer to the view that owing to their particular impact on
audiences, films, videos and broadcasting require a system of prior restraints, whereas it is
now accepted that books and other printed media do not. These media are viewed as
beneficial to the public in a number of respects, but are also seen as possible sources of
harm.93

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of
frequencies was thought to provide a rationale. However, cable and satellite television have
enormously increased the number of actual and potential channels. Digital technology will further
increase the number of channels available. But still, the argument persists that broadcasting is the
most influential means of communication, since it comes into the home, and so much time is spent
watching television. Since it has a unique impact on people and affects children in a way that the
print media normally does not, that regulation is said to be necessary in order to preserve pluralism.
It has been argued further that a significant main threat to free expression—in terms of diversity—
comes not from government, but from private corporate bodies. These developments show a need
for a reexamination of the traditional notions of the scope and extent of broadcast media
regulation. 94

The emergence of digital technology -- which has led to the convergence of broadcasting,
telecommunications and the computer industry -- has likewise led to the question of whether the
regulatory model for broadcasting will continue to be appropriate in the converged
environment.95 Internet, for example, remains largely unregulated, yet the Internet and the broadcast
media share similarities, 96 and the rationales used to support broadcast regulation apply equally to
the Internet.97 Thus, it has been argued that courts, legislative bodies and the government agencies
regulating media must agree to regulate both, regulate neither or develop a new regulatory
framework and rationale to justify the differential treatment. 98

F. The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go to
its application to the case at bar. To recapitulate, a governmental action that restricts freedom of
speech or of the press based on content is given the strictest scrutiny, with the government
having the burden of overcoming the presumed unconstitutionality by the clear and present
danger rule. This rule applies equally to all kinds of media, including broadcast media.

This outlines the procedural map to follow in cases like the one at bar as it spells out the following:
(a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and
(e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents
who have the burden to show that these acts do not abridge freedom of speech and of the press
failed to hurdle the clear and present danger test. It appears that the great evil which government
wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The
records of the case at bar, however, are confused and confusing, and respondents’ evidence falls
short of satisfying the clear and present danger test. Firstly, the various statements of the Press
Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the
taped conversation is also suspect. The Press Secretary showed to the public two versions, one
supposed to be a "complete" version and the other, an "altered" version. Thirdly, the evidence of the
respondents on the who’s and the how’s of the wiretapping act is ambivalent, especially considering
the tape’s different versions. The identity of the wire-tappers, the manner of its commission and
other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these
unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping
law.

We rule that not every violation of a law will justify straitjacketing the exercise of freedom of
speech and of the press. Our laws are of different kinds and doubtless, some of them provide
norms of conduct which even if violated have only an adverse effect on a person’s private comfort
but does not endanger national security. There are laws of great significance but their violation, by
itself and without more, cannot support suppression of free speech and free press. In
fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging
whether to restrain freedom of speech and of the press. The totality of the injurious effects of the
violation to private and public interest must be calibrated in light of the preferred status accorded by
the Constitution and by related international covenants protecting freedom of speech and of the
press. In calling for a careful and calibrated measurement of the circumference of all these factors to
determine compliance with the clear and present danger test, the Court should not be
misinterpreted as devaluing violations of law. By all means, violations of law should be
vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the
need to prevent their violation cannot per se trump the exercise of free speech and free
press, a preferred right whose breach can lead to greater evils. For this failure of the
respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option
but to uphold the exercise of free speech and free press. There is no showing that the feared
violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether
the mere press statements of the Secretary of Justice and of the NTC in question constitute a form
of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we
hold that it is not decisive that the press statements made by respondents were not reduced
in or followed up with formal orders or circulars. It is sufficient that the press statements
were made by respondents while in the exercise of their official functions. Undoubtedly,
respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its
statement as the regulatory body of media. Any act done, such as a speech uttered, for and on
behalf of the government in an official capacity is covered by the rule on prior restraint. The
concept of an "act" does not limit itself to acts already converted to a formal order or official
circular. Otherwise, the non formalization of an act into an official order or circular will result
in the easy circumvention of the prohibition on prior restraint. The press statements at bar are
acts that should be struck down as they constitute impermissible forms of prior restraints on the right
to free speech and press.

There is enough evidence of chilling effect of the complained acts on record. The warnings given
to media came from no less the NTC, a regulatory agency that can cancel the Certificate of
Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter
ego of the Executive, who wields the awesome power to prosecute those perceived to be violating
the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an
ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this
battle for freedom of speech and of the press. This silence on the sidelines on the part of some
media practitioners is too deafening to be the subject of misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be exercised
with care and in light of the distinct facts of each case. For there are no hard and fast rules when it
comes to slippery constitutional questions, and the limits and construct of relative freedoms are
never set in stone. Issues revolving on their construct must be decided on a case to case basis,
always based on the peculiar shapes and shadows of each case. But in cases where the challenged
acts are patent invasions of a constitutionally protected right, we should be swift in striking them
down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby
issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the
media on airing the alleged wiretapped conversation between the President and other personalities,
for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press

SO ORDERED.

REYNATO S. PUNO
Chief Justice

WE CONCUR:

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES TERESITA LEONARDO-DE CASTRO

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

REYNATO S. PUNO
Chief Justice
Footnotes

1 G.R. No. 103956, March 31, 1992, 207 SCRA 712.

2 218 Phil. 754 (1984).

3 G.R. No. 147571, May 5, 2001, 357 SCRA 496.

4 G.R. No. 169838, April 25, 2006, 488 SCRA 226.

5Rollo, pp. 6-7 (citing the Philippine Daily Inquirer (PDI), June 7, 2005, pp. A1, A18; PDI,
June 14, 2005, p. A1); and p. 58.

6 Id. at 7-8 (citing the Manila Standard, June 10, 2005, p. A2); and 58.

7 Id. at 7-8 and 59.

8 Id.

9 Id. at 8-9 and 59.

10 Id. at 9.

11 Id. at 10-12, 43-44, 60-62.

12 Id. at 62-63, 86-87.

13 Id. at 6.

14Respondents have "committed blatant violations of the freedom of expression and of the
press and the right of the people to information on matters of public concern enshrined in
Article III, Sections 4 and 7 of the 1987 Constitution. Id. at 18. Petitioner also argued that
respondent NTC acted beyond its powers when it issued the press release of June 11, 2005.
Id.

15 Id. at 6.

16 Through the Comment filed by the Solicitor-General. Id. at 56-83.

17 Id. at 71-73.

18 Id. at 74-75.

19The Court will exercise its power of judicial review only if the case is brought before it by a
party who has the legal standing to raise the constitutional or legal question. "Legal standing"
means a personal and substantial interest in the case such that the party has sustained or
will sustain direct injury as a result of the government act that is being challenged. The term
"interest" is material interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental
interest. Pimentel v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622,
citing Joya vs. Presidential Commission on Good Government, G.R. No. 96541, August 24,
1993, 225 SCRA 568. See Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246
SCRA 540, 562–563; and Agan v. PIATCO (Decision), 450 Phil. 744 (2003).

20Araneta v. Dinglasan, 84 Phil. 368, 373 (1949), cited in Osmeña v. COMELEC, G.R. No.
100318, July 30, 1991, 199 SCRA 750.

21 See Agan v. PIATCO (Decision), 450 Phil. 744 (2003).

22Philconsa v. Jimenez, 122 Phil. 894 (1965); Civil Liberties Union v. Executive
Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317; Guingona v. Carague, G.R.
No. 94571, April 22, 1991, 196 SCRA 221; Osmeña v. COMELEC, G.R. No. 100318, July
30, 1991, 199 SCRA 750; Basco v. PAGCOR, 274 Phil. 323 (1991); Carpio v. Executive
Secretary, G.R. No. 96409, February 14, 1992, 206 SCRA 290; Del Mar v. PAGCOR, 400
Phil. 307 (2000).

Basco v. PAGCOR, 274 Phil. 323 (1991), citing Kapatiran ng mga Naglilingkod sa
23

Pamahalaan ng Pilipinas Inc. v. Tan, G.R. No. L-81311, June 30, 1988, 163 SCRA 371.

24 1987 Phil. Const. Art. III, §4.

25 U.S. Bill of Rights, First Amendment. ("Congress shall make no law…abridging the
freedom of speech, or of the press, or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.")

26The First Amendment was so crafted because the founders of the American government
believed -- as a matter of history and experience -- that the freedom to express personal
opinions was essential to a free government. See Larry Kramer, The People Themselves:
Popular Constitution and Judicial Review (2004).

27Article 19 of the 1948 Universal Declaration on Human Rights (UDHR) states: "Everyone
has the right to freedom of opinion and expression; this right includes the right to hold
opinions without interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers." Although the UDHR is not binding as a treaty, many
of its provisions have acquired binding status on States and are now part of customary
international law. Article 19 forms part of the UDHR principles that have been transformed
into binding norms. Moreover, many of the rights in the UDHR were included in and
elaborated on in the International Covenant on Civil and Political Rights (ICCPR), a treaty
ratified by over 150 States, including the Philippines. The recognition of freedom of
expression is also found in regional human rights instruments, namely, the European
Convention on Human Rights (Article 10), the American Convention on Human Rights
(Article 10), and the African Charter on Human and Peoples’ Rights (Article 9).

28 Gonzales v. COMELEC, 137 Phil. 471, 492 (1969).

29Salonga v. Cruz-Pano, G.R. 59524, February 18, 1985, 134 SCRA 458-459; Gonzales v.
COMELEC, 137 Phil. 489, 492-3 (1969); Philippine Blooming Mills Employees Organization
v. Philippine Blooming Mills Co.,151-A Phil. 676-677 (1973); National Press Club v.
COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1, 9; Adiong v. COMELEC, G.R.
No. 103956, March 31, 1992, 207 SCRA 712, 715.

30Indeed, the struggle that attended the recognition of the value of free expression was
discussed by Justice Malcolm in the early case United States v. Bustos, 37 Phil. 731, 739
(1918). Justice Malcolm generalized that the freedom of speech as cherished in democratic
countries was unknown in the Philippine Islands before 1900. Despite the presence of
pamphlets and books early in the history of the Philippine Islands, the freedom of speech
was alien to those who were used to obeying the words of barangay lords and, ultimately,
the colonial monarchy. But ours was a history of struggle for that specific right: to be able to
express ourselves especially in the governance of this country. Id.

31 Id.

32 137 Phil. 471, 492 (1969).

33
Id.

Id. at 493, citing Thomas I. Emerson, Toward a General Theory of the First
34

Amendment, 72 Yale Law Journal 877 (1963).

35 Id. citing New York Times Co. v. Sullivan, 376 US 254, 270 (1964).

36 Id.

37 Id.

38 Id.

39 Id. citing Terminiello v. City of Chicago, 337 US 1, 4 (1949).

40 Id. citing U.S. v. Schwimmer, 279 US 644, 655 (1929).

41 G.R. No. L-59329, July 19, 1985, 137 SCRA 628.

42 Gonzales v. COMELEC, 137 Phil. 471, 494(1969).

43Hector S. De Leon, I Philippine Constitutional Law: Principles and Cases 485 (2003)
[Hereinafter De Leon, Constitutional Law].

44See John E. Nowak & Ronald D. Rotunda, Constitutional Law §16.1, 1131 (7th ed.2000
[Hereinafter Nowak & Rotunda, Constitutional Law].

45De Leon, Constitutional Law at 485. Laws have also limited the freedom of speech and of
the press, or otherwise affected the media and freedom of expression. The Constitution itself
imposes certain limits (such as Article IX on the Commission on Elections, and Article XVI
prohibiting foreign media ownership); as do the Revised Penal Code (with provisions on
national security, libel and obscenity), the Civil Code (which contains two articles on privacy),
the Rules of Court (on the fair administration of justice and contempt) and certain presidential
decrees. There is also a "shield law," or Republic Act No. 53, as amended by Republic Act
No. 1477. Section 1 of this law provides protection for non-disclosure of sources of
information, without prejudice to one’s liability under civil and criminal laws. The publisher,
editor, columnist or duly accredited reporter of a newspaper, magazine or periodical of
general circulation cannot be compelled to reveal the source of any information or news
report appearing in said publication, if the information was released in confidence to such
publisher, editor or reporter unless the court or a Committee of Congress finds that such
revelation is demanded by the security of the state.

46 See Nowak & Rotunda, Constitutional Law §16.1, 1131 (7th ed.2000).

47 Id.

48Cabansag v. Fernandez, 102 Phil. 151 (1957); Gonzales v. COMELEC, 137 Phil. 471
(1969). See People v. Perez, 4 Phil. 599 (1905); People v. Nabong, 57 Phil. 455
(1933); People v. Feleo, 57 Phil. 451 (1933).

This test was used by J. Ruiz-Castro in his Separate Opinion in Gonzales v.

49

COMELEC, 137 Phil. 471, 532-537 (1969).

50 Cabansag v. Fernandez, 102 Phil. 151 (1957).

51 ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794 (2000).

52 See U.S. v. Bustos, 37 Phil. 731 (1918).

53The aspect of freedom from liability subsequent to publication precludes liability for
completed publications of views traditionally held innocent. Otherwise, the prohibition on
prior restraint would be meaningless, as the unrestrained threat of subsequent punishment,
by itself, would be an effective prior restraint. Thus, opinions on public issues cannot be
punished when published, merely because the opinions are novel or controversial, or
because they clash with current doctrines. This fact does not imply that publishers and
editors are never liable for what they print. Such freedom gives no immunity from laws
punishing scandalous or obscene matter, seditious or disloyal writings, and libelous or
insulting words. As classically expressed, the freedom of the press embraces at the very
least the freedom to discuss truthfully and publicly matters of public concern, without
previous restraint or fear of subsequent punishment. For discussion to be innocent, it must
be truthful, must concern something in which people in general take a healthy interest, and
must not endanger some important social end that the government by law protects. See
Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
Commentary, 225 (2003 ed.).

54
Freedom of access to information regarding matters of public interest is kept real in
several ways. Official papers, reports and documents, unless held confidential and secret by
competent authority in the public interest, are public records. As such, they are open and
subject to reasonable regulation, to the scrutiny of the inquiring reporter or editor. Information
obtained confidentially may be printed without specification of the source; and that source is
closed to official inquiry, unless the revelation is deemed by the courts, or by a House or
committee of Congress, to be vital to the security of the State. Id.

55 Freedom of circulation refers to the unhampered distribution of newspapers and other

media among customers and among the general public. It may be interfered with in several
ways. The most important of these is censorship. Other ways include requiring a permit or
license for the distribution of media and penalizing dissemination of copies made without
it;[55] and requiring the payment of a fee or tax, imposed either on the publisher or on the
distributor, with the intent to limit or restrict circulation. These modes of interfering with the
freedom to circulate have been constantly stricken down as unreasonable limitations on
press freedom. Thus, imposing a license tax measured by gross receipts for the privilege of
engaging in the business of advertising in any newspaper, or charging license fees for the
privilege of selling religious books are impermissible restraints on the freedom of expression.
Id. citing Grosjean v. American Press Co., 297 U.S. 233 (1936); Murdock v.
Pennsylvania, 319 U.S. 105 (1943), and American Bible Society v. City of Manila, 101 Phil.
386 (1957). It has been held, however, even in the Philippines, that publishers and
distributors of newspapers and allied media cannot complain when required to pay ordinary
taxes such as the sales tax. The exaction is valid only when the obvious and immediate
effect is to restrict oppressively the distribution of printed matter.

56 Id at 225.

57 Burgos v. Chief of Staff, 218 Phil. 754 (1984).

58 Gonzales v. COMELEC, 137 Phil. 471 (1969); ABS-CBN Broadcasting Corp. v.

COMELEC, 380 Phil. 780, 795 (2000) ("Doctrinally, the Court has always ruled in favor of the
freedom of expression, and any restriction is treated an exemption."); Social Weather
Stations v. COMELEC, G.R. No. 147571, May 5, 2001, 357 SCRA 496 ("[A]ny system of
prior restraint comes to court bearing a heavy burden against its constitutionality. It is the
government which must show justification for enforcement of the restraint."). See also Iglesia
ni Cristo v. Court of Appeals, 328 Phil. 893 (1996) (religious speech falls within the protection
of free speech).

59Iglesia ni Cristo v. CA, 328 Phil. 893, 928 (1996), citing Near v. Minnesota, 283 US 697
(1931); Bantam Books Inc. v. Sullivan, 372 US 58 (1963); New York Times v. United
States, 403 US 713 (1971).

60See J.B.L. Reyes v. Bagatsing, 210 Phil. 457 (1983), Navarro v. Villegas, G.R. No. L-
31687, February 18, 1970, 31 SCRA 730; Ignacio v. Ela, 99 Phil. 346 (1956); Primicias v.
Fugosa, 80 Phil. 71 (1948).

61Determining if a restriction is content-based is not always obvious. A regulation may be

content-neutral on its face but partakes of a content-based restriction in its application, as
when it can be shown that the government only enforces the restraint as to prohibit one type
of content or viewpoint. In this case, the restriction will be treated as a content-based
regulation. The most important part of the time, place, or manner standard is the requirement
that the regulation be content-neutral both as written and applied. See Nowak & Rotunda,
Constitutional Law §16.1, 1133 (7th ed.2000).

62See Osmeña v. COMELEC, 351 Phil. 692, 718 (1998). The Court looked to Adiong v.
COMELEC, G.R. No. 103456, March 31, 1992, 207 SCRA 712, which had cited a U.S.
doctrine, viz. "A governmental regulation is sufficiently justified if it is within the constitutional
power of the Government, if it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free expression; and if the
incident restriction on alleged [freedom of speech & expression] is no greater than is
essential to the furtherance of that interest."

63Nowak & Rotunda, Constitutional Law §16.1, 1133 (7th ed.2000). This was also called a
"deferential standard of review" in Osmeña v. COMELEC, 351 Phil. 692, 718 (1998). It was
explained that the clear and present danger rule is not a sovereign remedy for all free
speech problems, and its application to content-neutral regulations would be tantamount to
"using a sledgehammer to drive a nail when a regular hammer is all that is needed." Id. at
478.

64Osmeña v. COMELEC, 351 Phil. 692, 717, citing Adiong v. COMELEC, G.R. No. 103956,
March 31, 1992, 207 SCRA 712. It was noted that the test was actually formulated in United
States v. O’Brien, 391 U.S. 367 (1968), which was deemed appropriate for restrictions on
speech which are content-neutral.

65Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996). In this case, it was found that
the act of respondent Board of Review for Motion Pictures and Television of rating a TV
program with "X"— on the ground that it "offend[s] and constitute[s] an attack against other
religions which is expressly prohibited by law"— was a form of prior restraint and required
the application of the clear and present danger rule.

Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996); Gonzales v. COMELEC, 137
66

Phil. 471 (1969); ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780 (2000); Social
Weather Stations v. COMELEC,G.R. No. 147571, May 5, 2001, 357 SCRA 496.

67 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996).

68Schenke v. United States, 249 U.S. 47, 52 (19191), cited in Cabansag v. Fernandez, 102
Phil. 151 (1957); and ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794
(2000).

Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, cited in ABS-
69

CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795 (2000).

70See Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712,
and Gonzales v. COMELEC, 137 Phil. 471 (1969), cited in ABS-CBN Broadcasting Corp. v.
COMELEC, 380 Phil. 780, 795 (2000).

71 See Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712.

72 See Osmeña v. COMELEC, 351 Phil. 692 (1998).

73Parenthetically, there are two types of content-based restrictions. First, the government
may be totally banning some type of speech for content (total ban). Second, the government
may be requiring individuals who wish to put forth certain types of speech to certain times or
places so that the type of speech does not adversely affect its environment. See Nowak &
Rotunda, Constitutional Law §16.1, 1131 (7th ed.2000). Both types of conten-based
regulations are subject to strict scrutiny and the clear and present danger rule.

Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996); Gonzales v. COMELEC, 137
74

Phil. 471 (1969); ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780 (2000); Social
Weather Stations v. COMELEC,G.R. No. 147571, May 5, 2001, 357 SCRA 496.

75This is based on a finding that "broadcast regulation involves unique considerations," and
that "differences in the characteristics of new media justify differences in the First
Amendment standards applied to them." Red Lion Broad. Co. v. Federal Communications
Commission [FCC], 395 U.S. 367, 386 (1969). See generally National Broadcasting Co. v.
United States, 319 U.S. 190, 219 (1943) (noting that the public interest standard denoted to
the FCC is an expansive power).

76See Federal Communications Commission [FCC] v. Pacifica Foundation, 438 U.S. 726
(1978); Sable Communications v. FCC, 492 U.S. 115 (1989); and Reno v. American Civil
Liberties Union [ACLU], 521 U.S. 844, 874 (1997). In these cases, U.S. courts disregarded
the argument that the offended listener or viewer could simply turn the dial and avoid the
unwanted broadcast [thereby putting print and broadcast media in the same footing],
reasoning that because the broadcast audience is constantly tuning in and out, prior
warnings cannot protect the listener from unexpected program content.

77Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969). Red Lion involved the application
of the fairness doctrine and whether someone personally attacked had the right to respond
on the broadcast medium within the purview of FCC regulation. The court sustained the
regulation. The Court in Red Lion reasoned that because there are substantially more
individuals who want to broadcast than there are frequencies available, this "scarcity of the
spectrum" necessitates a stricter standard for broadcast media, as opposed to newspapers
and magazines. See generally National Broadcasting v. United States, 319 U.S. 190, 219
(1943)(noting that the public interest standard denoted to the FCC is an expansive power).

78 See Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726

(1978); Sable Communications v. FCC, 492 U.S. 115 (1989); and Reno v. American Civil
Liberties Union [ACLU], 521 U.S. 844, 874 (1997). In FCC v. Pacifica Foundation, involving
an FCC decision to require broadcasters to channel indecent programming away from times
of the day when there is a reasonable risk that children may be in the audience, the U.S.
Court found that the broadcast medium was an intrusive and pervasive one. In reaffirming
that this medium should receive the most limited of First Amendment protections, the U.S.
Court held that the rights of the public to avoid indecent speech trump those of the
broadcaster to disseminate such speech. The justifications for this ruling were two-fold. First,
the regulations were necessary because of the pervasive presence of broadcast media in
American life, capable of injecting offensive material into the privacy of the home, where the
right "to be left alone plainly outweighs the First Amendment rights of an intruder." Second,
the U.S. Court found that broadcasting "is uniquely accessible to children, even those too
young to read." The Court dismissed the argument that the offended listener or viewer could
simply turn the dial and avoid the unwanted broadcast, reasoning that because the
broadcast audience is constantly tuning in and out, prior warnings cannot protect the listener
from unexpected program content.

79 FCC v. League of Women Voters, 468 U.S. 364, 376 (1984).

80 Id. at 380.

81See Estrada v. Escritor (Resolution), A.M. No. P-02-1651, June 22, 2006 (free exercise of
religion); and Osmeña v. COMELEC, 351 Phil. 692, 718 (1998) (speech restrictions to
promote voting rights). The Court in Osmeña v. COMELEC, for example, noted that it is a
foreign notion to the American Constitution that the government may restrict the speech of
some in order to enhance the relative voice of others [the idea being that voting is a form of
speech]. But this Court then declared that the same does not hold true of the Philippine
Constitution, the notion "being in fact an animating principle of that document." 351 Phil. 692,
718 (1998).
82 G.R. No. L-59329, July 19, 1985, 137 SCRA 628.

83 Id.

84 Id. at 634-637.

85There is another case wherein the Court had occasion to refer to the differentiation
between traditional print media and broadcast media, but of limited application to the case at
bar inasmuch as the issues did not invoke a free-speech challenge, but due process and
equal protection. See Telecommunications and Broadcast Attorneys of the Philippines, Inc.
v. COMELEC, 352 Phil. 153 (1998) (challenge to legislation requiring broadcast stations to
provide COMELEC Time free of charge).

86
G.R. No. L-69500, July 22, 1985, 137 SCRA 717. In this case, the classification of a movie
as "For Adults Only" was challenged, with the issue focused on obscenity as basis for the
alleged invasion of the right to freedom on artistic and literary expression embraced in the
free speech guarantees of the Constitution. The Court held that the test to determine free
expression was the clear and present danger rule. The Court found there was an abuse of
discretion, but did not get enough votes to rule it was grave. The decision specifically stated
that the ruling in the case was limited to concept of obscenity applicable to motion pictures.
Id. at 723-729.

87 Id. at 725.

88 Id.

89 ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794 (COMELEC Resolution
restraining ABS-CBN, a corporation engaged in broadcast media of television and radio,
from conducting exit surveys after the 1998 elections). Although the decision was rendered
after the 1998 elections, the Court proceeded to rule on the case to rule on the issue of the
constitutionality of holding exit polls and the dissemination of data derived therefrom. The
Court ruled that restriction on exit polls must be tested against the clear and present danger
rule, the rule we "unquestionably" adhere to. The framing of the guidelines issued by the
Court clearly showed that the issue involved not only the conduct of the exit polls but also its
dissemination by broadcast media. And yet, the Court did not distinguish, and still applied the
clear and present danger rule.

90351 Phil. 692 (1998) (challenge to legislation which sought to equalize media access
through regulation).

91
Id. at 718.

92Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. COMELEC, 352

Phil. 153 (1998) (challenge to legislation requiring broadcast stations to provide COMELEC
Time free of charge).

93 Helen Fenwick, Civil Liberties and Human Rights 296 (3rd ed. 2002).

94 Id.
 Stephen J. Shapiro, How Internet Non-Regulation Undermines The Rationales Used To
95

Support Broadcast Regulation, 8-FALL Media L. & Pol'y 1, 2 (1999).

96Technological advances, such as software that facilitates the delivery of live, or real-time,
audio and video over the Internet, have enabled Internet content providers to offer the same
services as broadcasters. Indeed, these advancements blur the distinction between a
computer and a television. Id. at 13.

97 Id.

98The current rationales used to support regulation of the broadcast media become
unpersuasive in light of the fact that the unregulated Internet and the regulated broadcast
media share many of the same features. Id. In other words, as the Internet and broadcast
media become identical, for all intents and purposes, it makes little sense to regulate one but
not the other in an effort to further First Amendment principles. Indeed, as Internet
technologies advance, broadcasters will have little incentive to continue developing
broadcast programming under the threat of regulation when they can disseminate the same
content in the same format through the unregulated Internet. In conclusion, "the theory of
partial regulation, whatever its merits for the circumstances of the last fifty years, will be
unworkable in the media landscape of the future." Id. at 23.
EXECUTIVE ORDER No. 184

PROMULGATING THE TENTH REGULAR FOREIGN INVESTMENT NEGATIVE LIST

WHEREAS, Republic Act (RA) No. 7042, also known as the "Foreign Investments Act of 1991," as
amended by RA No. 8179, provides for the formulation of a Regular Foreign Investment Negative
List, covering investment areas/activities which are open to foreign investors and/or reserved to
Filipino nationals; and

WHEREAS, there is a need to formulate the Tenth Regular Foreign Investment Negative List,
replacing the Ninth Regular Foreign Investment Negative List, to reflect changes to List A, pursuant
to existing laws.

NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby order:

SECTION 1. Tenth Regular Foreign Investment Negative List. Only the investment areas and/or
activities listed in the Annex hereof shall be reserved to Philippine nationals, and hereafter shall be
referred to as the Tenth Regular Foreign Investment Negative List. The extent of foreign equity
participation in these areas shall be limited to the percentages indicated in the List.

SECTION 2. Amendments. Amendments to List A may be made at any time to reflect changes
instituted in specific laws while amendments to List B shall not be made more often than once every
two years, pursuant to Section 8 of RA No. 7042, as amended, and its revised implementing rules
and regulations.

SECTION 3. Repeal. All issuances, orders, rules and regulations, or parts thereof, which are
inconsistent with this Order are hereby repealed, amended or modified accordingly.

SECTION 4. Separability. If any provision of this Order is declared invalid or unconstitutional, the
other provisions not affected thereby shall remain valid and subsisting.

SECTION 5. Effectivity. This Order shall take effect fifteen (15) days after its publication in a
newspaper of general circulation. 1âwphi1

DONE, in the City of Manila, this 29th day of May, in the year of our Lord Two Thousand and Fifteen.

(Sgd.) BENIGNO S. AQUINO, III

By the President:

(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary
G.R. No. 122156 February 3, 1997

MANILA PRINCE HOTEL petitioner,

vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.

BELLOSILLO, J.:

The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos,1 is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the
provision is not self-executing but requires an implementing legislation for its enforcement.
Corollarily, they ask whether the 51% shares form part of the national economy and patrimony
covered by the protective mantle of the Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to
the privatization program of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/reservation system, and financial support
to strengthen the profitability and performance of the Manila Hotel.2 In a close bidding held on 18
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a
Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for
the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.

Pertinent provisions of the bidding rules prepared by respondent GSIS state —

I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC —

1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the

GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila
Hotel. . . .

b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
 K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER —

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:

a. Execution of the necessary contracts with GSIS/MHC not later than

October 23, 1995 (reset to November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee on

Privatization)/OGCC (Office of the Government Corporate Counsel)
are obtained.3

Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution
of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong Berhad.4 In a subsequent letter
dated 10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three
Million Pesos (P33.000.000.00) as Bid Security to match the bid of the Malaysian Group,
Messrs. Renong Berhad . . .5 which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On
18 October 1995 the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.

On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to
it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique
M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.

In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a
historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony.6 Petitioner also argues that
since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which
is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business
of respondent GSIS being a part of the tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered
by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share.8

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision and
requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done."9

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and
second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner
speaks of the guests who have slept in the hotel and the events that have transpired therein which
make the hotel historic, these alone do not make the hotel fall under the patrimony of the nation.
What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct from the Philippines as a State.

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it
right from the beginning and not after it had lost in the bidding.

Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that
the privilege of submitting a matching bid has not yet arisen since it only takes place if for any
reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid
had not yet taken place.

Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority
from which it emanates. It has been defined as the fundamental and paramount law of the nation. 10 It
prescribes the permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a supreme law to
which all other laws must conform and in accordance with which all private rights must be
determined and all public authority administered. 11 Under the doctrine of constitutional supremacy, if
a law or contract violates any norm of the constitution that law or contract whether promulgated by
the legislative or by the executive branch or entered into by private persons for private purposes is
null and void and without any force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of citizens. 12 A provision which
lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not
self-executing. But a provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means of which the
right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-
executing if the nature and extent of the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination and construction of its terms,
and there is no language indicating that the subject is referred to the legislature for action. 13

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

. . . in case of doubt, the Constitution should be considered self-executing rather than

non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed implementing
statute. 15

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
executing, as they quote from discussions on the floor of the 1986 Constitutional Commission —

MR. RODRIGO. Madam President, I am asking this question as the

Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?

THE PRESIDENT. What is the question of Commissioner Rodrigo? Is

it to remove the word "QUALIFIED?".

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED

FILIPINOS" as against whom? As against aliens or over aliens?

MR. NOLLEDO. Madam President, I think that is understood. We use

the word "QUALIFIED" because the existing laws or prospective laws
will always lay down conditions under which business may be
done. For example, qualifications on the setting up of other financial
structures, et cetera (emphasis supplied by respondents)

MR. RODRIGO. It is just a matter of style.

 MR. NOLLEDO Yes, 16

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not
precluded from enacting other further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left to the legislature
without impairing the self-executing nature of constitutional provisions.

In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of
the rights secured or the determination thereof, or place reasonable safeguards around the exercise
of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a provision ineffective in
the absence of such legislation. The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be
self-executing. The rule is that a self-executing provision of the constitution does not necessarily
exhaust legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available. 17 Subsequent
legislation however does not necessarily mean that the subject constitutional provision is not, by
itself, fully enforceable.

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are
not self-executing. 18 The argument is flawed. If the first and third paragraphs are not self-executing
because Congress is still to enact measures to encourage the formation and operation of enterprises
fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and
exercise authority over foreign investments within its national jurisdiction, as in the third paragraph,
then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by
its language require any legislation in order to give preference to qualified Filipinos in the grant of
rights, privileges and concessions covering the national economy and patrimony. A constitutional
provision may be self-executing in one part and non-self-executing in another. 19

Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not as judicially enforceable rights — are simply not in
point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional
provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation-
building 23 the promotion of social justice, 24 and the values of education. 25 Tolentino v. Secretary of
Finance 26 refers to the constitutional provisions on social justice and human rights 27 and on
education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion of general
welfare, 30 the sanctity of family life, 31 the vital role of the youth in nation-building 32 and the promotion
of total human liberation and development. 33A reading of these provisions indeed clearly shows that
they are not judicially enforceable constitutional rights but merely guidelines for legislation. The very
terms of the provisions manifest that they are only principles upon which the legislations must be
based. Res ipsa loquitur.

On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or implementing
laws or rules for its enforcement. From its very words the provision does not require any legislation
to put it in operation. It is per se judicially enforceable When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that — qualified Filipinos shall be preferred.
And when our Constitution declares that a right exists in certain specified circumstances an action
may be maintained to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such constitutional right,
such right enforces itself by its own inherent potency and puissance, and from which all legislations
must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.

As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains —

The patrimony of the Nation that should be conserved and developed refers not only
to out rich natural resources but also to the cultural heritage of out race. It also refers
to our intelligence in arts, sciences and letters. Therefore, we should develop not
only our lands, forests, mines and other natural resources but also the mental ability
or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term natural resources, but also to
the cultural heritage of the Filipinos.

Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was
the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors
who are accorded the traditional Philippine hospitality. 36

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of
a City. 37During World War II the hotel was converted by the Japanese Military Administration into a
military headquarters. When the American forces returned to recapture Manila the hotel was
selected by the Japanese together with Intramuros as the two (2) places fro their final stand.
Thereafter, in the 1950's and 1960's, the hotel became the center of political activities, playing host
to almost every political convention. In 1970 the hotel reopened after a renovation and reaped
numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986
the hotel was the site of a failed coup d' etat where an aspirant for vice-president was "proclaimed"
President of the Philippine Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim
that the Filipino First Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon which the building
stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I would like to introduce an amendment to the Nolledo

amendment. And the amendment would consist in substituting the
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF
THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.

xxx xxx xxx

MR. MONSOD. Madam President, apparently the proponent is

agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it preference?

MR. DAVIDE. The Nolledo amendment would refer to an individual

Filipino. What about a corporation wholly owned by Filipino citizens?

MR. MONSOD. At least 60 percent, Madam President.

MR. DAVIDE. Is that the intention?

MR. MONSOD. Yes, because, in fact, we would be limiting it if we

say that the preference should only be 100-percent Filipino.

MR: DAVIDE. I want to get that meaning clear because "QUALIFIED

FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.

MR. MONSOD. We agree, Madam President. 39

xxx xxx xxx

MR. RODRIGO. Before we vote, may I request that the amendment

be read again.

MR. NOLLEDO. The amendment will read: "IN THE GRANT OF

RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include not only
individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos. 40

The phrase preference to qualified Filipinos was explained thus —

 MR. FOZ. Madam President, I would like to request Commissioner
Nolledo to please restate his amendment so that I can ask a
question.

MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND

CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."

MR FOZ. In connection with that amendment, if a foreign enterprise is

qualified and a Filipino enterprise is also qualified, will the Filipino
enterprise still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?

MR. NOLLEDO. The answer is "yes."

MR. FOZ. Thank you, 41

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues —

MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL —

THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called "Filipino First" policy. That means that Filipinos should be
given preference in the grant of concessions, privileges and rights covering the
national patrimony. 42

The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo 43 —

Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic

concerns. It is better known as the FILIPINO FIRST Policy . . . This provision was
never found in previous Constitutions . . . .

The term "qualified Filipinos" simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the pampering
and preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counter productive and
inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice has to
be made between a "qualified foreigner" end a "qualified Filipino," the latter shall be
chosen over the former."

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance
with its own guidelines so that the sole inference here is that petitioner has been found to be
possessed of proven management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel. 44

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The attempt
to violate a clear constitutional provision — by the government itself — is only too distressing. To
adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For,
even some of the provisions of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the
government a defense that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt
—

The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts — provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress,
or perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates. 45

Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument again
is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with
the prior approval of the State acting through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is so significantly involved with
the private actor as to make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although entered into by respondent GSIS, is in fact
a transaction of the State and therefore subject to the constitutional command. 46

When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions of
power — legislative, executive and judicial. Accordingly, a constitutional mandate directed to the
State is correspondingly directed to the three(3) branches of government. It is undeniable that in this
case the subject constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from the State.

It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning
bidder after it has negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the "Filipino First Policy provision of the Constitution bestows preference on
qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will
be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor
are they under obligation to enter into one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which
are presumed to be known to all the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws
and contracts must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.

Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of
price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award the block of
shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the
highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself.

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go
to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of
the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.

This Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny.
These are given factors which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and obligations under the Constitution
and the laws of the forum.

The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality
then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of
the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the
latter have a cause of action.

Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable.
Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided
in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.

The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution
not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes
more business opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this matter could have not
been more appropriately articulated by Chief Justice Narvasa —

As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility
of legislation economic in nature, the Supreme Court has not been spared criticism
for decisions perceived as obstacles to economic progress and development . . . in
connection with a temporary injunction issued by the Court's First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that injunction "again demonstrates that
the Philippine legal system can be a major obstacle to doing business here.

Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that
duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48

Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over non-
material values. A commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved. 49

Nationalism is inherent, in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-
state can have no higher purpose. Any interpretation of any constitutional provision must adhere to
such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism. 50

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of
property in a commercial district. We are talking about a historic relic that has hosted many of the
most important events in the short history of the Philippines as a nation. We are talking about a hotel
where heads of states would prefer to be housed as a strong manifestation of their desire to cloak
the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel
has played and continues to play a significant role as an authentic repository of twentieth century
Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul — a
place with a history of grandeur; a most historical setting that has played a part in the shaping of a
country. 51

This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark — this Grand Old Dame of hotels in Asia — to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from
a qualified Filipino, can be gained by the Filipinos Manila Hotel — and all that it stands for — is sold
to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted
to a foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is
the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And
this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the Constitution.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL

CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do
such other acts and deeds as may be necessary for purpose.

SO ORDERED.

Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.

It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:

xxx xxx xxx

 In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos.1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air.2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not
only their natural resources of the country but practically everything that belongs to the Filipino
people, the tangible and the material as well as the intangible and the spiritual assets and
possessions of the people. It is to be noted that the framers did not stop with conservation. They
knew that conservation alone does not spell progress; and that this may be achieved only through
development as a correlative factor to assure to the people not only the exclusive ownership, but
also the exclusive benefits of their national patrimony).3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others.5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment"6 To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances".7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must

refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.

It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.

VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos"1 is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.

On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.

All told, I am constrained to vote for granting the petition.

MENDOZA, J., concurring in the judgment:

I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos"1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession
given by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest
bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner
but by allowing it "to match the highest bid in terms of price per share" before it is awarded the
shares of stocks.3 That, to me, is what "preference to qualified Filipinos" means in the context of this
case — by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.

This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute giving "preference to
Filipino citizens in the lease of public market stalls."5 This Court upheld the cancellation of existing
leases covering market stalls occupied by persons who were not Filipinos and the award thereafter
of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly,
in Vda. de Salgado v. De la Fuente,6 this Court sustained the validity of a municipal ordinance
passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and
granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the
stalls. In Chua Lao v. Raymundo,7 the preference granted under the statute was held to apply to
cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public
markets even if there were available other stalls as good as those occupied by aliens. "The law,
apparently, is applicable whenever there is a conflict of interest between Filipino applicants and
aliens for lease of stalls in public markets, in which situation the right to preference immediately
arises."8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing.9 Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated
in the Constitution 10 is to give them preferential treatment where they can at least stand on equal
footing with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of benefits and concessions
covering the national economy" and therefore no one should begrudge us if we give preferential
treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is
a business owned by the Government. It is being privatized. Privatization should result in the
relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not
in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that
is sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will
not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to
those who have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no
basis in fact.

For the foregoing reasons, I vote to grant the petition.

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."

I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".

Section 10, Article XII of the 1987 Constitution provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain —

The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).

Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:

xxx xxx xxx

MR. NOLLEDO. The Amendment will read: "IN THE

GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).

MR. MONSOD. We also wanted to add, as

Commissioner Villegas said, this committee and this
 body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:

MR. NOLLEDO. In the grant of rights, privileges and

concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.

MR. FOZ. In connection with that amendment, if a

foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some

aspects than the Filipino enterprise, will the Filipino
still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,

Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said —

The nationalistic tendency is manifested in various provisions of the Constitution. . . .

It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.

As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.

As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."

Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.

I remember, however, a Spanish proverb which says — "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.

I vote GRANT the petition.

PUNO, J., dissenting:

This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel"1 The proposal was approved by respondent Committee on Privatization.

In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:

First — Pass the prequalification process;

Second — Submit the highest bid on a price per share basis for the Block of Shares;
Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;

xxx xxx xxx

IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide

management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:

a. Proven management .expertise in the hotel

industry; or

b. Significant equity ownership (i.e. board

representation) in another hotel company; or

c. Overall management and marketing expertise to

successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide

access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.

xxx xxx xxx

D. PREQUALIFICATION DOCUMENTS

xxx xxx xxx

E. APPLICATION PROCEDURE

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration

Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:

a. Guidelines and Procedures: Second

Prequalification and Public Bidding of the MHC
Privatization

b. Confidential Information Memorandum: The Manila

Hotel Corporation
 c. Letter of Invitation. to the Prequalification and
Bidding Conference

xxx xxx xxx

4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at The Manila

Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

The applicant should submit 5 sets of the prequalification documents

(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS

1. The Applicant will be evaluated by the PBAC with

the assistance of the TEC based on the Information
Package and other information available to the PBAC.

2. If the Applicant is a Consortium/Joint Venture, the

evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.

3. The decision of the PBAC with respect to the

results of the PBAC evaluation will be final.

4. The Applicant shall be evaluated according to the

criteria set forth below:

a. Business management expertise,

track record, and experience

b. Financial capability.

c. Feasibility and acceptability of the

proposed strategic plan for the Manila
Hotel

5. The PBAC will shortlist such number of Applicants as it may deem

appropriate.
 6. The parties that prequalified in the first MHC public bidding — ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton — may participate in
the Public Bidding without having to undergo the prequalification
process again.

G. SHORTLIST OF QUALIFIED BIDDERS

1. A notice of prequalification results containing the shortlist of

Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.

2. In the case of a Consortium/Joint Venture, the withdrawal by

member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.

V. GUIDELINES FOR THE PUBLIC BIDDING

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to

participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three Hundred

Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is Thirty-
Six Pesos and Sixty-Seven Centavos (P36.67).

2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the

minimum required will not considered.

D. TRANSFER COSTS

xxx xxx xxx

E. OFFICIAL BID FORM

 1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.

2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be

submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH).

If the Qualified Bidder is a corporation, the representative of the

Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of

the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.

2. BID SECURITY

a. The Qualified Bidder should deposit Thirty-Three Million Pesos

(P33,000,00), in Philippine currency as Bid Security in the form of:

i. Manager's check or unconditional demand draft

payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or

ii. Standby-by letter of credit issued by a reputable

banking institution acceptable to the GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have Bid Security; or

ii. The Bid Security accompanying the bid is for less

than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.

d. If the Qualified Bidder becomes the winning Bidder/Strategic

Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned

immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.

f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.

g. The Bid Security of the Highest Bidder will be forfeited in favor of

GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement

with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price

not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for

any other reason.

G. SUBMISSION OF BIDS

1. The Public Bidding will be held on September 7, 1995 at the

following location:

New GSIS Headquarters Building

Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public Bidding

to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.

3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"

a. Written Authority Bid

b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and

"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.

6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.

7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.

H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at

3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.

3. Immediately following the reading of the bids, the PBAC will

formally announce the highest bid and the Highest Bidder.

4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.

5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed

period; or
 b. There is only one (1) bid that is submitted and
acceptable to the PBAC.

I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC

1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute

with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.

b. The Highest Bidder must execute the Stock

Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management

Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of gross

revenues.(1)

b. Incentive fee: Maximum of 8.0% of gross operating

profit(1) after deducting undistributed overhead
expenses and the basic management fee.

c. Fixed component of the international

marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters for

the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
 A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will be

in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC

PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic

Partner after the following conditions are met:

a. Execution of the necessary contract with

GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and

COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the

Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.

2. All payments should be made in the form of a Manager's Check or

unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.

M. GENERAL CONDITIONS

1. The GSIS unconditionally reserves the right to reject any or all

applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
 2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.

3. The GSIS reserves the right to reset the date of the

prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it

has on the Block of Shares.

5. All documents and materials submitted by the Qualified Bidders,

except the Bid Security, may be returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public

Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.

7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding.3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.

On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.

Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.

Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution4 on
the "National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

xxx xxx xxx

 The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;

(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the

controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;

(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;

(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action.6 Some of its provisions, however, can be implemented only through appropriate
laws enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.

The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement.7 The inquiry demands a micro-analysis of the text and the context of the provision in
question.8

Courts as a rule consider the provisions of the Constitution as self-executing,9 rather than as
requiring future legislation for their enforcement. 10 The reason is not difficult to discern. For if they
are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign
people can be easily ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the
unyielding rule that legislative actions may give breath to constitutional rights but congressional in
action should not suffocate them. 12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, 13 the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the
privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts
to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the
protection of property. 17 The same treatment is accorded to constitutional provisions forbidding the
taking or damaging of property for public use without just compensation.18

Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article
II of our Constitution entitled "Declaration of Principles and State Policies" should generally be
construed as mere statements of principles of the State. 20 We have also ruled that some provisions
of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education Science and
Technology, Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their
enforcement is addressed to the discretion of Congress though they provide the framework for
legislation 23 to effectuate their policy content. 24

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.

The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact
laws that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision
in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of
Filipinos.

The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.

The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of
the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights
involving our national patrimony. The unique value of the Manila Hotel to our history and culture
cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As
chronicled by Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class hotel built by
the American Insular Government for Americans living in, or passing through, Manila while traveling
to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For
sometime, it was exclusively used by American and Caucasian travelers and served as the "official
guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began
coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied
Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It
was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of
Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and
kings, premiers and potentates, as well as glamorous international film and sports celebrities were
housed in the Hotel. It was also the situs of international conventions and conferences. In the local
scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel
has reaped and continues reaping numerous recognitions and awards from international hotel and
travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are
judicially cognizable facts which cannot be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its
reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987
Constitution. To be sure, the law does not equate cultural treasure and cultural property as
synonymous to the phrase "patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of
the employees and the administrative and operational expenses of the GSIS, 35Excess funds,
however, are allowed to be invested in business and other ventures for the benefit of the
employees.36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a
simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of
Article XII of the Constitution.

The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people
elevated as a constitutional command.

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.

Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx

THE PRESIDENT. What is the suggestion of

Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO

QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?

MR. NOLLEDO. Madam President, I think that is

understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO

QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.

MR. NOLLEDO. Madam President, that was the

intention of the proponents. The committee has
accepted the amendment.

xxx xxx xxx

As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
 rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.

With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.

In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata — first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.

To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.

It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.

We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition.

Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add

1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights .
. . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.

2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.

The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.

It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos.1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air.2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not
only their natural resources of the country but practically everything that belongs to the Filipino
people, the tangible and the material as well as the intangible and the spiritual assets and
possessions of the people. It is to be noted that the framers did not stop with conservation. They
knew that conservation alone does not spell progress; and that this may be achieved only through
development as a correlative factor to assure to the people not only the exclusive ownership, but
also the exclusive benefits of their national patrimony).3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others.5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment"6 To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances".7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must

refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.

It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.

VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos"1 is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.

On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.

All told, I am constrained to vote for granting the petition.

MENDOZA, J., concurring in the judgment:

I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos"1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession
given by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest
bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner
but by allowing it "to match the highest bid in terms of price per share" before it is awarded the
shares of stocks.3 That, to me, is what "preference to qualified Filipinos" means in the context of this
case — by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute giving "preference to
Filipino citizens in the lease of public market stalls."5 This Court upheld the cancellation of existing
leases covering market stalls occupied by persons who were not Filipinos and the award thereafter
of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly,
in Vda. de Salgado v. De la Fuente,6 this Court sustained the validity of a municipal ordinance
passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and
granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the
stalls. In Chua Lao v. Raymundo,7 the preference granted under the statute was held to apply to
cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public
markets even if there were available other stalls as good as those occupied by aliens. "The law,
apparently, is applicable whenever there is a conflict of interest between Filipino applicants and
aliens for lease of stalls in public markets, in which situation the right to preference immediately
arises."8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing.9 Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated
in the Constitution 10 is to give them preferential treatment where they can at least stand on equal
footing with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of benefits and concessions
covering the national economy" and therefore no one should begrudge us if we give preferential
treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is
a business owned by the Government. It is being privatized. Privatization should result in the
relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not
in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that
is sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will
not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to
those who have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no
basis in fact.

For the foregoing reasons, I vote to grant the petition.

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."

I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".

Section 10, Article XII of the 1987 Constitution provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain —

The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).

Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:

xxx xxx xxx

MR. NOLLEDO. The Amendment will read: "IN THE

GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).

MR. MONSOD. We also wanted to add, as

Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:

 MR. NOLLEDO. In the grant of rights, privileges and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.

MR. FOZ. In connection with that amendment, if a

foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some

aspects than the Filipino enterprise, will the Filipino
still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,

Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said —

The nationalistic tendency is manifested in various provisions of the Constitution. . . .

It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.

As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.

As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."

Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says — "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.

I vote GRANT the petition.

PUNO, J., dissenting:

This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel"1 The proposal was approved by respondent Committee on Privatization.

In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:

First — Pass the prequalification process;

Second — Submit the highest bid on a price per share basis for the Block of Shares;

Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;

xxx xxx xxx

IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

 The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:

a. Proven management .expertise in the hotel

industry; or

b. Significant equity ownership (i.e. board

representation) in another hotel company; or

c. Overall management and marketing expertise to

successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide

access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.

xxx xxx xxx

D. PREQUALIFICATION DOCUMENTS

xxx xxx xxx

E. APPLICATION PROCEDURE

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration

Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:

a. Guidelines and Procedures: Second

Prequalification and Public Bidding of the MHC
Privatization

b. Confidential Information Memorandum: The Manila

Hotel Corporation

c. Letter of Invitation. to the Prequalification and

Bidding Conference

xxx xxx xxx

4. PREQUALIFICATION AND BIDDING CONFERENCE

 A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

The applicant should submit 5 sets of the prequalification documents

(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS

1. The Applicant will be evaluated by the PBAC with

the assistance of the TEC based on the Information
Package and other information available to the PBAC.

2. If the Applicant is a Consortium/Joint Venture, the

evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.

3. The decision of the PBAC with respect to the

results of the PBAC evaluation will be final.

4. The Applicant shall be evaluated according to the

criteria set forth below:

a. Business management expertise,

track record, and experience

b. Financial capability.

c. Feasibility and acceptability of the

proposed strategic plan for the Manila
Hotel

5. The PBAC will shortlist such number of Applicants as it may deem

appropriate.

6. The parties that prequalified in the first MHC public bidding — ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton — may participate in
the Public Bidding without having to undergo the prequalification
process again.

G. SHORTLIST OF QUALIFIED BIDDERS

 1. A notice of prequalification results containing the shortlist of
Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.

2. In the case of a Consortium/Joint Venture, the withdrawal by

member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.

V. GUIDELINES FOR THE PUBLIC BIDDING

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to

participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three Hundred

Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is Thirty-
Six Pesos and Sixty-Seven Centavos (P36.67).

2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the

minimum required will not considered.

D. TRANSFER COSTS

xxx xxx xxx

E. OFFICIAL BID FORM

1. Bids must be contained in the prescribed Official Bid Form, a copy

of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.

2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."
 F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be

submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH).

If the Qualified Bidder is a corporation, the representative of the

Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of

the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.

2. BID SECURITY

a. The Qualified Bidder should deposit Thirty-Three Million Pesos

(P33,000,00), in Philippine currency as Bid Security in the form of:

i. Manager's check or unconditional demand draft

payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or

ii. Standby-by letter of credit issued by a reputable

banking institution acceptable to the GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have Bid Security; or

ii. The Bid Security accompanying the bid is for less

than the required amount.

c. If the Bid Security is in the form of a manager's check or

unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.

d. If the Qualified Bidder becomes the winning Bidder/Strategic

Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.

f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.

g. The Bid Security of the Highest Bidder will be forfeited in favor of

GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement

with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price

not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for

any other reason.

G. SUBMISSION OF BIDS

1. The Public Bidding will be held on September 7, 1995 at the

following location:

New GSIS Headquarters Building

Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public Bidding

to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.

3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."

4. The Qualified Bidder should submit the following documents

in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"

a. Written Authority Bid

b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and
"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.

6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.

7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.

H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at

3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.

3. Immediately following the reading of the bids, the PBAC will

formally announce the highest bid and the Highest Bidder.

4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.

5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed

period; or

b. There is only one (1) bid that is submitted and

acceptable to the PBAC.

I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC

1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
 purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute

with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.

b. The Highest Bidder must execute the Stock

Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management

Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of gross

revenues.(1)

b. Incentive fee: Maximum of 8.0% of gross operating

profit(1) after deducting undistributed overhead
expenses and the basic management fee.

c. Fixed component of the international

marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters for

the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.

A Qualified Bidder envisioning a Management Contract for The

Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will be

in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC

PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic

Partner after the following conditions are met:

a. Execution of the necessary contract with

GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and

COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the

Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.

2. All payments should be made in the form of a Manager's Check or

unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.

M. GENERAL CONDITIONS

1. The GSIS unconditionally reserves the right to reject any or all

applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.

2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.

3. The GSIS reserves the right to reset the date of the

prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
 4. The GSIS sells only whatever rights, interest and participation it
has on the Block of Shares.

5. All documents and materials submitted by the Qualified Bidders,

except the Bid Security, may be returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public

Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.

7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding.3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.

On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.

Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.

Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution4 on
the "National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

xxx xxx xxx

The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;

(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the

controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
 (3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;

(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;

(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action.6 Some of its provisions, however, can be implemented only through appropriate
laws enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.

The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement.7 The inquiry demands a micro-analysis of the text and the context of the provision in
question.8

Courts as a rule consider the provisions of the Constitution as self-executing,9 rather than as
requiring future legislation for their enforcement. 10 The reason is not difficult to discern. For if they
are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign
people can be easily ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the
unyielding rule that legislative actions may give breath to constitutional rights but congressional in
action should not suffocate them. 12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, 13 the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the
privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts
to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the
protection of property. 17 The same treatment is accorded to constitutional provisions forbidding the
taking or damaging of property for public use without just compensation.18

Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article
II of our Constitution entitled "Declaration of Principles and State Policies" should generally be
construed as mere statements of principles of the State. 20 We have also ruled that some provisions
of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education Science and
Technology, Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their
enforcement is addressed to the discretion of Congress though they provide the framework for
legislation 23 to effectuate their policy content. 24

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
 corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.

The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact
laws that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision
in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of
Filipinos.

The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.

This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles

and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.

The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of
the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights
involving our national patrimony. The unique value of the Manila Hotel to our history and culture
cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As
chronicled by Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class hotel built by
the American Insular Government for Americans living in, or passing through, Manila while traveling
to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For
sometime, it was exclusively used by American and Caucasian travelers and served as the "official
guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began
coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied
Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It
was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of
Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and
kings, premiers and potentates, as well as glamorous international film and sports celebrities were
housed in the Hotel. It was also the situs of international conventions and conferences. In the local
scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel
has reaped and continues reaping numerous recognitions and awards from international hotel and
travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are
judicially cognizable facts which cannot be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its
reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987
Constitution. To be sure, the law does not equate cultural treasure and cultural property as
synonymous to the phrase "patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of
the employees and the administrative and operational expenses of the GSIS, 35Excess funds,
however, are allowed to be invested in business and other ventures for the benefit of the
employees.36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a
simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of
Article XII of the Constitution.

The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people
elevated as a constitutional command.

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx

THE PRESIDENT. What is the suggestion of

Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO

QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?

MR. NOLLEDO. Madam President, I think that is

understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO

QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.

MR. NOLLEDO. Madam President, that was the

intention of the proponents. The committee has
accepted the amendment.

xxx xxx xxx

As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.

In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata — first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.

To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.

It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.

We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition.

Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add

1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights .
. . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.

The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.

Footnotes

1 See Sec. 10, par. 2, Art. XII, 1987 Constitution

2 Par I. Introduction and Highlights; Guidelines and Procedures: Second

Prequailifications and Public Bidding of the MHC Privatization; Annex "A,"
Consolidated Reply to Comments of Respondents; Rollo, p. 142.

3 Par. V. Guidelines for the Public Bidding, id., pp. 153-154.

4 Annex "A," Petition for Prohibition and Mandamus with Temporary Restraining
Order; Rollo, pp. 13-14.

5 Annex "B," Petition for Prohibition and Mandamus with Temporary Restraining
Order; id., p. 15.

6 Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-
6; id., pp. 6-7.

7 Consolidated Reply to Comments of Respondents, p. 17; id., p. 133.

8 Par. V.J. 1, Guidelines for Public Bidding, Guidelines and Procedures: second
Prequalifications and Public Bidding of the MHC Privatization, Annex "A,"
Consolidated Reply to Comments of Respondents; id., p. 154.

9 Respondents' Joint Comment with Urgent Motion to Lift Temporary Restraining

Order, p. 9; Rollo, p. 44.

10 Marbury v. Madison, 5, U.S. 138 (1803).

11 Am Jur. 606.
12 16 Am Jur. 2d 281.

13 Id., p. 282.

14 See Note 12.

15 Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.

16 Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.

17 16 Am Jur 2d 283-284.

18 Sec. 10, first par., reads: The Congress shall, upon recommendation of the
economic and planning agency, when the national interest dictates, reserve to
citizens of the Philippines or to corporations or associations at least sixty per
centum of whose capital is owned by such citizens, or such higher percentage as
Congress may prescribe, certain areas of investments. The Congress shall enact
measures that will encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.

Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with its national goals
and priorities.

19 State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 SW2d 319.

20 G.R. No. 91649, 14 May 1991, 197 SCRA 52.

21 Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he
State values the dignity of every human person and guarantees full respect for
human rights.

22 Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social institution. It
shall equally protect the life of the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
government.

23 Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in
nation-building and shall promote and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs.

24 Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress
shall give highest priority to the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political
power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition
of property and its increments.

Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the
commitment to create economic opportunities based on freedom of initiative and self-
reliance.

25 Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports),
provides that [t]he State shall:

(1) Establish, maintain, and support a complete, adequate, and integrated system of
education relevant to the needs of the people and society;

(2) Establish and maintain a system of free public education in the elementary and
high school levels. Without limiting the natural right of parents to rear their children,
elementary education is compulsory for all children of school age;

(3) Establish and maintain a system of scholarship grants, student loan programs,
subsidies, and other incentives which shall be available to deserving students in both
public and private schools, especially to the underprivileged.

(4) Encourage non-formal, informal, and indegenous learning, independent, and out-
of-school study programs particularly those that respond to community needs; and

(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics,
vocational efficiency, and other skills.

26 G.R. 115455, 25 August 1994, 235 SCRA 630.

27 See Note 25.

28 Sec. 1 Art. XIV, provides that [t]he State shall protect and promote the right of all
citizens to quality education at all levels of education and shall take appropriate steps
to make such education accessible to all.

29 G.R. No. 118910, 17 July 1995.

30 Sec. 5 Art. II (Declaration of Principles and State Policies), provides that [t]he
maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of
the blessings of democracy.

31 See Note 23.

32 See Note 24.

33 Sec. 17, Art II, provides that [t]he State shall give priority to education, science
and technology, arts, culture, and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human liberation and development.
34 Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p.
72.

35 Webster's Third New International Dictionary, 1986 ed., p. 1656.

36 The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of
Windsor, President Richard Nixon of U.S.A., Emperor Akihito of Japan, President
Dwight Eisenhower of U.S.A, President Nguyen Van Thieu of Vietnam, President
Park Chung Hee of Korea, Prime Minister Richard Holt of Australia, Prime Minister
Keith Holyoake of New Zealand, President Lyndon Johnson of U.S.A., President
Jose Lopez Portillo of Mexico, Princess Margaret of England, Prime Minister Malcolm
Fraser of Australia, Prime Minister Yasuhiro Nakasone of Japan, Prime Minister
Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina, President
Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister
Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia,
Prime Minister Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan
Hassanal Bolkiah of Brunei, President Ramaswani Venkataraman of India, Prime
Minister Go Chok Tong of Singapore, Prime Minister Enrique Silva Cimma of Chile,
Princess Chulaborn and Mahacharri Sirindhorn of Thailand, Prime Minister Tomiichi
Murayama of Japan, Sultan Azlan Shah and Raja Permaisuri Agong of Malaysia,
President Kim President Young Sam of Korea, Princess Infanta Elena of Spain,
President William Clinton of U.S.A., Prime Minister Mahathir Mohamad of Malaysia,
King Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of
Argentina, Prime Ministers Chatichai Choonvan and Prem Tinsulanonda of Thailand,
Prime Minister Benazir Bhutto of Pakistan, President Vaclav Havel of Czech
Republic, Gen. Norman Schwarzcopf of U.S.A, President Ernesto Perez Balladares
of Panama, Prime Minister Adolfas Slezevicius of Lithuania, President Akbar
Hashemi Rafsanjani of Iran, President Frei Ruiz Tagle of Chile, President Le Duc
Anh of Vietnam, and Prime Minister Julius Chan of Papua New Guinea, see
Memorandum for Petitioner, pp. 16-19.

37 Authored by Beth Day Romulo.

38 See Note 9, pp. 15-16; Rollo, pp. 50-51.

39 Record of the Constitutional Commission. Vol. 3, 22 August 1986. p. 607.

40 Id., p. 612.

41 Id., p. 616.

42 Id., p. 606.

43 Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.
930-931.

44 Bidders were required to have at least one of the these qualifications to be able to
participate in the bidding process; see Note 2.

45 Memorandum of Fr. Joaquin G. Bernas, S.J., p. 6.

46 Id., pp. 3-4.

47 See Note 8.

48 Keynote Address at the ASEAN Regional Symposium of Enforcement of Industrial

Property Rights held 23 October 1995 at New World Hotel, Makati City.

49 Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers

and Directors of the PHILCONSA for 1996 held 16 January 1996 at the Sky-Top,
Hotel Intercontinental, Makati City.

50 Memorandum of Authorities submitted by former Chief Justice Enrique M.

Fernando, p. 5.

51 8 March 1996 issue of Philippine Daily Inquirer, p. B13.

PADILLA, J., concurring:

1 Article XII, Section 10, par. 2, 1987 Constitution.

2 Padilla, The 1987 Constitution of the Republic of the Philippines, Volume III, p. 89.

3 Sinco, Philippine Political Law, 11th ed, p. 112.

4 Nolledo, The New Constitution of the Philippines, Announced, 1990 ed., p. 72.

5 Memorandum for Petitioner, p. 1.

6 Laurel, Proceedings of the Philippine Constitutional Convention (1934-1935), p.

507.

7 Id., p. 562.

VITUG, J., concurring:

1 Second par. Section 10, Art. XII, 1987 Constitution.

MENDOZA, J., concurring:

1 Art. XII, §10, second paragraph.

2 GUIDELINES AND PROCEDURES: SECOND PREQUALIFICATION AND

PUBLIC BIDDING OF THE MHC PRIVATIZATION (hereafter referred to as
GUIDELINES), Part. V, par. H(4)..

3 Id.

4 83 Phil. 242 (1949).

5 R.A. No. 37, §1.

6 87 Phil. 343 (1950).

7 104 Phil. 302 (1958).

8 Id, at 309.

9 For an excellent analysis of American cases on reverse discrimination in these

areas, see GERALD GUNTHER, CONSTITUTIONAL LAW 780-819 (1991).

10 Art. II, §19: "The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." (Emphasis added)

11 See Villegas v. Hiu Chiung Tsai Pao Ho, 86 SCRA 270 (1978) (invalidating an
ordinance imposing a flat fee of P500 on aliens for the privilege of earning a
livelihood).

12 Petitioner passed the criteria set forth in the GUIDELINES, Part IV, par. F(4), of
the GSIS, relating to the following:

a. Business management expertise, tract record, and experience

b. Financial capability

c. Feasibility and acceptability of the proposed strategic plan for the

Manila Hotel.

13 GUIDELINES, Part V, par. (1)(3), in relation to Part. I.

14 Id., Part V, par. V (1).

PUNO, J., dissenting:

1 Introduction and Highlights, Guidelines and Procedures: Second Prequalification

and Public Bidding of the MHC Privatization, Annex "A" to Petitioner's Consolidated
Reply to Comments of Respondents, Rollo, p. 142.

2 The four bidders who previously prequalified for the first bidding, namely, ITT
Sheraton, Marriot International, Inc., Renaissance Hotel International, Inc., and the
consortium of RCBC and the Ritz Carlton, were deemed prequalified for the second
bidding.

3 Annex "A" to the Consolidated Reply to Comments of Respondents, Rollo, pp. 140-
155.

4 Former Chief Justice Enrique Fernando and Commissioner Joaquin Bernas were
invited by the Court as amicus curiae to shed light on its meaning.

5 Lopez v. de los Reyes, 55 Phil. 170, 190 [1930].

6 16 Am Jur 2d, Constitutional Law, Sec. 139 p. 510 [1979 ed. ]; 6 R.C.L. Sec. 52 p.
57 [1915]; see also Willis v. St. Paul Sanitation Co. 48 Minn. 140, 50 N.W. 1110, 31
A.J.R. 626, 16 L.R.A. 281 [1892]; State ex rel. Schneider v. Kennedy, 587 P. 2d 844,
225 Kan [1978].

7 Willis v. St. Paul Sanitation, supra, at 1110-1111; see also Cooley, A Treatise on
Constitutional Limitations 167, vol. 1 [1927].

8 16 C.J.S., Constitutional Law, Sec. 48, p. 100.

9 Cooley, supra, at 171; 6 R.C.L. Sec. 53, pp. 57-58; Brice v. McDow, 116 S.C. 324,
108 S.E. 84, 87 [1921]; see also Gonzales, Philippine Constitutional Law p. 26
[1969].

10 16 C.J.S., Constitutional Law, Sec. 48, p. 101.

11 Way v. Barney, 116 Minn. 285, 133 N.W. 801, 804 38 L.R.A. (N.S.) 648, Ann.
Cas. 1913 A, 719 [1911]; Brice v. McDow, supra, at 87; Morgan v. Board of
Supervisors, 67 Ariz. 133, 192 P. 2d 236, 241 [1948]; Gonzales, supra..

12 Ninth Decennial Digest Part I, Constitutional Law, (Key No. 28), p. 1638.

13 Article III, Section 2; see Webb v. de Leon, 247 SCRA 652 [1995]; People v.
Saycon, 236 SCRA 325 (1994]; Allado v. Diokno, 232 SCRA 192 (1994]; Burgos v.
Chief of Staff, 133 SCRA 800 [1984]; Yee Sue Kuy v. Almeda, 70 Phil. 141 [1940];
Pasion Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; and a host of other cases.

14 Article III, Section 12, pars. 1 to 3; People v. Alicando, 251 SCRA 293 [1995];
People v. Bandula 232 SCRA 566 [1994]; People v. Nito 228 SCRA 442 [1993];
People v. Duero, 104 SCRA 379 [1981]; People v. Galit, 135 SCRA 465 [1985]; and
a host of other cases.

15 Article III, Section 14; People v. Digno, 250 SCRA 237 [1995]; People v. Godoy,
250 SCRA 676 [1995]; People v. Colcol 219 SCRA [1993]; Borja v. Mendoza, 77
SCRA 422 [1977]; People v. Dramayo, 42 SCRA 59 [1971]; and a host of other
cases.

16 Galman v. Pamaran, 138 SCRA 274 [1985]; Chavez v. Court of Appeals 24

SCRA 663 [1968]; People v. Otadura, 86 Phil. 244 [1950]; Bermudez v. Castillo, 64
Phil, 485 [1937]; and a host of other cases.

17 Harley v. Schuylkill County, 476 F. Supp, 191, 195-196 [1979]; Erdman v.

Mitchell, 207 Pa. St. 79, 56 Atl. 327, 99 A.S.R. 783 63 L.R.A. 534 [1903]; see Ninth
Decennial Digest Part I, Constitutional Law, (Key No. 28), pp. 1638-1639.

18 City of Chicago v. George F. Harding Collection, 217 N.E. 2d 381, 383, 70 Ill.
App. 2d 254 [1966]; People v. Buellton Dev. Co., 136 P. 2d 793, 796, 58 Cal. App. 2d
178 [1943]; Bordy v. State, 7 N.W. 2d 632, 635, 142 Neb. 714 [1943]; Cohen v. City
of Chicago, 36 N.E. 2d 220, 224, 377 Ill 221 [1941].
19 16 Am Jur 2d, Constitutional Law, Sec. 143, p. 514; 16 C.J.S. Constitutional Law,
Sec. 48, p. 100; 6 R.C.L. Sec. 54, p. 59; see also State ex rel. Noe v. Knop La. App.
190 So. 135, 142 [1939]; State ex rel. Walker v. Board of Comm'rs. for Educational
Lands and Funds, 3 N.W. 2d 196, 200, 141 Neb. 172 [1942]; Maddox v. Hunt, 83 P.
2d 553, 556, 83 Okl. 465 [1938].

20 Article II, Sections 11, 12 and 13 (Basco v. Phil. Amusements and Gaming
Corporation, 197 SCRA 52, 68 [1991]); Sections 5, 12, 13 and 17 (Kilosbayan, Inc. v.
Morato, 246 SCRA 540, 564 [1995]).

21 Article XIII, Section 13 (Basco, supra).

22 Article XIV, Section 2 (Basco, supra).

23 Kilosbayan v. Morato, supra, at 564.

24 Basco v. Phil. Amusements and Gaming Corporation, supra, at 68.

25 Congress had previously passed the Retail Trade Act (R.A. 1180); the Private
Security Agency Act (R.A. 5487; the law on engaging in the rice and corn industry
(R.A. 3018, P.D. 194), etc.

26 Or such higher percentage as Congress may prescribe.

27 Article XIV, section 3 of the 1973 Constitution reads:

"Sec. 3. The Batasang Pambansa shall, upon recommendation of the National

Economic and Development Authority, reserve to citizens of the Philippines or to
corporations or associations wholly owned by such citizens, certain traditional areas
of investments when the national interest so dictates,"

28 101 Phil. 1155 [1957].

29 See Bernas, The Constitution of the Republic of the Philippines 450, vol. II [1988].
The Lao Ichong case upheld the Filipinization of the retail trade and implied that
particular areas of business may be Filipinized without doing violence to the equal
protection clause of the Constitution.

30 Nolledo The New Constitution of the Philippines, Annotated, 1990 ed., p. 72. The
word "patrimony" first appeared in the preamble of the 1935 Constitution and was
understood to cover everything that belongs to the Filipino people, the tangible and
the material as well as the intangible and the spiritual assets and possessions of the
nation (Sinco, Philippine Political Law, Principles and Concepts [1962 ed.], p. 112;
Speech of Delegate of Conrado Benitez defending the draft preamble of the 1935
Constitution in Laurel, Proceedings of the Constitutional Convention, vol. III, p. 325
[1966]).

31 Commissioned by the Manila Hotel Corporation for the Diamond Jubilee

celebration of the Hotel in 1987; see The Manila Hotel: The Heart and Memory of a
City.any
32 Section 7 of R.A. 4846 provides:

Sec. 7. In the designation of a particular cultural property as a .national cultural

treasure," the following procedure shall be observed:

(a) Before the actual designation, the owner, if the property is privately owned, shall
be notified at least fifteen days prior to the intended designation, and he shall be
invited to attend the deliberation and given a chance to be heard. Failure on the part
of the owner to attend the deliberation shall not bar the panel to render its decision.
Decision shall be given by the panel within a week after its deliberation. In the event
that the owner desires to seek reconsideration of the designation made by the panel,
he may do so within thirty days from the date that the decision has been rendered. If
no request for reconsideration is filed after this period, the designation is then
considered final and executory. Any request for reconsideration filed within thirty
days and subsequently again denied by the panel, may be further appealed to
another panel chairmanned by the Secretary of Education with two experts as
members appointed by the Secretary of Education. Their decision shall final and
binding.

(b) Within each kind or class of objects, only the rare and unique objects may be
designated as "National Cultural Treasures." The remainder, if any shall be treated
as cultural property.

xxx xxx xxx

33 P.D. 1146, Sec, 5; P.D, 1146, known as "The Revised Government Service
Insurance Act of 1977" amended Commonwealth Act No. 186, the "Government
Service Insurance Act" of 1936.

34 Beronilla v. Government Service Insurance System, 36 SCRA 44, 53 [1970];

Social Security System Employees Association v. Soriano, 7 SCRA 1016, 1023
[1963].

35 Id., secs. 28 and 29.

36 Id., Sec. 30.

37 Constitution, Article IX (B), section 2 (1).

38 Constitution, Article IX (D), section 2 (1).

39 It is meet to note that our laws do not debar foreigners from engaging in the hotel
business. Republic Act No. 7042, entitled the "Foreign Investments Act of 1991" was
enacted by Congress to "attract, promote and welcome . . . foreign investments . . . in
activities which significantly contribute to national industrialization and socio-
economic development to the extent that foreign investment is allowed by the
Constitution and relevant laws." The law contains a list, called the Negative List
specifying areas of economic activity where foreign participation is limited or
prohibited. Areas of economic activity not included in the Negative List are open to
foreign participation up to one hundred per cent (Sees. 6 and 7). Foreigners now own
and run a great number of our five-star hotels.
G.R. No. 160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC.,
ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA,
THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-

ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-
intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM
FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO
LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS
BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY,
SAMUEL DANGWA, ALFREDO MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO
AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON,
MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO,
CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO,
FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG,
ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES,
AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO,
CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC,
GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI
LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE
VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM
MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF
PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA
LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER
BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO,
JR., AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160292 November 10, 2003

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C.
REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY
AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,

vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON

MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE
TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME
BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA
LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE
RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS,
ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH
LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U.
SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND
EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.

x---------------------------------------------------------x

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES,
HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.

x---------------------------------------------------------x

G.R. No. 160342 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR
OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS
A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS
OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.

x---------------------------------------------------------x

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents.

x---------------------------------------------------------x

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE
PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

x---------------------------------------------------------x

G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S.
RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B.
CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN
BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF
THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES
FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS
REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO
SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF
JUSTICE HILARIO G. DAVIDE, JR. respondents.

x---------------------------------------------------------x

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner,

vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.

x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner,

vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF
THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE
HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.

x---------------------------------------------------------x

G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE
SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.

x---------------------------------------------------------x

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G.

DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

x---------------------------------------------------------x

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER,
HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES,
THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.

x---------------------------------------------------------x

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.

MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF
CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY.
MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES,
INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION
INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS
G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO
FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF
THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS
HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS
SENATE PRESIDENT, respondents.

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly
irreconcilable it may appear to be, over the determination by the independent branches of
government of the nature, scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.

Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one such
today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal
courses and not a few of our countrymen to vent cacophonous sentiments thereon.

There may indeed be some legitimacy to the characterization that the present controversy subject of
the instant petitions – whether the filing of the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political question – has resulted in a political
crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of
conscience.

In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first instance,
that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally
permissible. Both its resolution and protection of the public interest lie in adherence to, not departure
from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative, executive or
judicial branches of government by no means prescribes for absolute autonomy in the discharge by
each of that part of the governmental power assigned to it by the sovereign people.

At the same time, the corollary doctrine of checks and balances which has been carefully calibrated
by the Constitution to temper the official acts of each of these three branches must be given effect
without destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they are to
insure that governmental power is wielded only for the good of the people, mandate a relationship of
interdependence and coordination among these branches where the delicate functions of enacting,
interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by
what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex.

Article XI of our present 1987 Constitution provides:

ARTICLE XI
 Accountability of Public Officers

SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.

SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law, but not by
impeachment.

SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the concurrence of two-thirds of all the Members
of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Emphasis and underscoring supplied)

Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House
Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between these two
Congresses' House Impeachment Rules are shown in the following tabulation:
11TH CONGRESS RULES
RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating
Impeachment. – Impeachment shall
be initiated only by a verified
complaint for impeachment filed by
any Member of the House of
Representatives or by any citizen
upon a resolution of endorsement by
any Member thereof or by a verified
complaint or resolution of
impeachment filed by at least one-
third (1/3) of all the Members of the
House.
RULE V
12TH CONGRESS NEW RULES
RULE V
BAR AGAINST INITIATION OF
IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. – Impeachment
Proceedings Deemed Initiated. –
In cases where a Member of the
House files a verified complaint of
impeachment or a citizen files a
verified complaint that is endorsed
by a Member of the House through
a resolution of endorsement
against an impeachable officer,
impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint and/or resolution against
such official, as the case may be,
is sufficient in substance, or on the
date the House votes to overturn
or affirm the finding of the said
Committee that the verified
complaint and/or resolution, as the
case may be, is not sufficient in
substance.
In cases where a verified
complaint or a resolution of
impeachment is filed or endorsed,
as the case may be, by at least
one-third (1/3) of the Members of
the House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.
Section 17. Bar Against
Initiation Of Impeachment
 BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. – No
impeachment proceedings shall be
initiated against the same official
more than once within the period of
one (1) year.
Proceedings. – Within a period of
one (1) year from the date
impeachment proceedings are
deemed initiated as provided in
Section 16 hereof, no
impeachment proceedings, as
such, can be initiated against the
same official. (Italics in the original;
emphasis and underscoring
supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by

Representative Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an
investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief
Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of
this Court for "culpable violation of the Constitution, betrayal of the public trust and other high
crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and
Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice on August 5,
20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within ten session days from
receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint
was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in
substance.10 To date, the Committee Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI of the Constitution.

Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October
23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment
complaint11 was filed with the Secretary General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur)
against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry
initiated by above-mentioned House Resolution. This second impeachment complaint was
accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all
the Members of the House of Representatives.13

Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions
contend that the filing of the second impeachment complaint is unconstitutional as it violates the
provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be
initiated against the same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and
arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th
Congress,"14 posits that his right to bring an impeachment complaint against then Ombudsman
Aniano Desierto had been violated due to the capricious and arbitrary changes in the House
Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives
and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be
declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to
return the second impeachment complaint and/or strike it off the records of the House of
Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this
Court permanently enjoin respondent House of Representatives from proceeding with the second
impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging
that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate;
and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President
Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event
that the Senate has accepted the same, from proceeding with the impeachment trial.

In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition
for Prohibition involves public interest as it involves the use of public funds necessary to conduct the
impeachment trial on the second impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further proceedings on said second impeachment
complaint.

In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he
has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v.
PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that the
second impeachment complaint be declared unconstitutional.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal
profession, pray in their petition for Prohibition for an order prohibiting respondent House of
Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles
of Impeachment to the Senate.

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M.
Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in
ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be
declared null and void.

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in
their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the
House Resolution endorsing the second impeachment complaint as well as all issuances emanating
therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President
from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and
issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from
conducting any proceedings or to act on the impeachment complaint.

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine
Bar, both allege in their petition, which does not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the
House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be
declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo
N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order
and Permanent Injunction to enjoin the House of Representatives from proceeding with the second
impeachment complaint.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the
Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and
Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of Representatives be
permanently enjoined from proceeding with the second impeachment complaint.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for
Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v.
Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a
writ prohibiting respondents House of Representatives and the Senate from conducting further
proceedings on the second impeachment complaint and that this Court declare as unconstitutional
the second impeachment complaint and the acts of respondent House of Representatives in
interfering with the fiscal matters of the Judiciary.

In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in
his petition for Prohibition are of national and transcendental significance and that as an official of
the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in discharging their duties in accordance with the
Constitution, prays for the issuance of a writ prohibiting the House of Representatives from
transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or
giving the impeachment complaint due course.

In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted without
jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF)."

In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that as
professors of law they have an abiding interest in the subject matter of their petition for Certiorari and
Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of
their students," pray that the House of Representatives be enjoined from endorsing and the Senate
from trying the Articles of Impeachment and that the second impeachment complaint be declared
null and void.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in
his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that
the second impeachment complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing
of the second impeachment complaint involve matters of transcendental importance, prays in its
petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings
arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited
from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be
prohibited from accepting the Articles of Impeachment and from conducting any proceedings
thereon.

In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their
petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution
of endorsement and impeachment by the respondent House of Representatives be declared null and
void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting
any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the
same, that they be prohibited from proceeding with the impeachment trial.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary Restraining
Order and/or preliminary injunction to prevent the House of Representatives from transmitting the
Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition
bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28,
2001 House Impeachment Rules as null and void for being unconstitutional.

Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292
alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the
Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a
direct violation of the constitutional principle of fiscal autonomy of the judiciary.

On October 28, 2003, during the plenary session of the House of Representatives, a motion was put
forth that the second impeachment complaint be formally transmitted to the Senate, but it was not
carried because the House of Representatives adjourned for lack of quorum,19 and as reflected
above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary
injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse
themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.

Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003,
resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the
Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of
November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and
(d) appointed distinguished legal experts as amici curiae.20 In addition, this Court called on
petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for
and in their behalf to refrain from committing acts that would render the petitions moot.

Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De
Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation
asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally mandated duty to initiate impeachment
cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene
(Ex Abudante Cautela)21 and Comment, praying that "the consolidated petitions be dismissed for
lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the
sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide
impeachment cases, including the one where the Chief Justice is the respondent, be recognized and
upheld pursuant to the provisions of Article XI of the Constitution."22

Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate
them with the earlier consolidated petitions; (b) require respondents to file their comment not later
than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon,
filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and
have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable
issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment
court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the
principal issues raised by the petitions pertain exclusively to the proceedings in the House of
Representatives.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the
matter in question is not yet ripe for judicial determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No.
160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in
Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,

Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans
Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in
G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.

The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003,
to wit:
 Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it;
on what issues and at what time; and whether it should be exercised by this Court at this
time.

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of

Article XI of the Constitution; and

g) judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of the
reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and
novel issue of whether or not the power of judicial review extends to those arising from impeachment
proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial
review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be
discussed in seriatim.

Judicial Review

As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.

This Court's power of judicial review is conferred on the judicial branch of the government in Section
1, Article VIII of our present 1987 Constitution:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government. (Emphasis
supplied)

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel
in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935
Constitution whose provisions, unlike the present Constitution, did not contain the present provision
in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed:
 x x x In times of social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicial department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectibility,
but as much as it was within the power of our people, acting through their delegates to so
provide, that instrument which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels,for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and restrictions embodied in
our Constitution are real as they should be in any living constitution. In the United States
where no express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development there,
has been set at rest by popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.

The Constitution is a definition of the powers of government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution. Even
then, this power of judicial review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption
of constitutionality to legislative enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the determination of actual cases
and controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the
government.24 (Italics in the original; emphasis and underscoring supplied)

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual controversies involving rights which are legally
demandable and enforceable."26
Thus, even in the United States where the power of judicial review is not explicitly conferred upon
the courts by its Constitution, such power has "been set at rest by popular acquiescence for a period
of more than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v.
Madison27 that the power of judicial review was first articulated by Chief Justice Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law
of the land, the constitution itself is first mentioned; and not the laws of the United States
generally, but those only which shall be made in pursuance of the constitution, have that
rank.

Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.28(Italics in the original; emphasis supplied)

In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution,
the power of judicial review was exercised by our courts to invalidate constitutionally infirm
acts.29 And as pointed out by noted political law professor and former Supreme Court Justice Vicente
V. Mendoza,30 the executive and legislative branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution. (Emphasis supplied)

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of

the delicate system of checks and balances which, together with the corollary principle of separation
of powers, forms the bedrock of our republican form of government and insures that its vast powers
are utilized only for the benefit of the people for which it serves.

The separation of powers is a fundamental principle in our system of government. It

obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction, and
is supreme within its own sphere. But it does not follow from the fact that the three powers
are to be kept separate and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination in the workings of
the various departments of the government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.32 (Emphasis and underscoring
supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial review is
the chief, indeed the only, medium of participation – or instrument of intervention – of the judiciary in
that balancing operation."34

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in
the following excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:

xxx

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal defense at
all, the solicitor general set up the defense of political questions and got away with it.
As a consequence, certain principles concerning particularly the writ of habeas corpus, that
is, the authority of courts to order the release of political detainees, and other matters related
to the operation and effect of martial law failed because the government set up the defense
of political question. And the Supreme Court said: "Well, since it is political, we have no
authority to pass upon it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely request an encroachment
upon the rights of the people, but it, in effect, encouraged further violations thereof
during the martial law regime. x x x

xxx

Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the judiciary
is the final arbiter on the question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously
as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters
of this nature.
 This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original; emphasis and underscoring
supplied)

To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn
to the Constitution itself which employs the well-settled principles of constitutional construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc.
v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique Fernando,
declared:

We look to the language of the document itself in our search for its meaning. We do
not of course stop there, but that is where we begin. It is to be assumed that the
words in which constitutional provisions are couched express the objective sought to
be attained. They are to be given their ordinary meaning except where technical terms
are employed in which case the significance thus attached to them prevails. As the
Constitution is not primarily a lawyer's document, it being essential for the rule of law to
obtain that it should ever be present in the people's consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus these are the cases where the need for construction is
reduced to a minimum.37 (Emphasis and underscoring supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:

A foolproof yardstick in constitutional construction is the intention underlying the provision

under consideration. Thus, it has been held that the Court in construing a Constitution should
bear in mind the object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be examined in the light of the
history of the times, and the condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.39 (Emphasis and
underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice
Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental principle
of constitutional construction that the intent of the framers of the organic law and of
the people adopting it should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the purpose of the
framers and of the people in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not have dedicated a

provision of our Constitution merely for the benefit of one person without considering
that it could also affect others.When they adopted subsection 2, they permitted, if not
willed, that said provision should function to the full extent of its substance and its
terms, not by itself alone, but in conjunction with all other provisions of that great
document.43 (Emphasis and underscoring supplied)

Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:

It is a well-established rule in constitutional construction that no one provision of the

Constitution is to be separated from all the others, to be considered alone, but that all
the provisions bearing upon a particular subject are to be brought into view and to be
so interpreted as to effectuate the great purposes of the instrument. Sections bearing
on a particular subject should be considered and interpreted together as to effectuate
the whole purpose of the Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.45 (Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In
still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention "are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but they give us no light as
to the views of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law. We
think it safer to construe the constitution from what appears upon its face." The
proper interpretation therefore depends more on how it was understood by the people
adopting it than in the framers's understanding thereof.46 (Emphasis and underscoring
supplied)

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential

application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.

Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a
political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47

For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49

In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel
rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United
States.50 Thus, they contend that the exercise of judicial review over impeachment proceedings is
inappropriate since it runs counter to the framers' decision to allocate to different fora the powers to
try impeachments and to try crimes; it disturbs the system of checks and balances, under which
impeachment is the only legislative check on the judiciary; and it would create a lack of finality and
difficulty in fashioning relief.51 Respondents likewise point to deliberations on the US Constitution to
show the intent to isolate judicial power of review in cases of impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and
American authorities cannot be credited to support the proposition that the Senate's "sole power to
try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a
textually demonstrable constitutional commitment of all issues pertaining to impeachment to the
legislature, to the total exclusion of the power of judicial review to check and restrain any grave
abuse of the impeachment process. Nor can it reasonably support the interpretation that it
necessarily confers upon the Senate the inherently judicial power to determine constitutional
questions incident to impeachment proceedings.

Said American jurisprudence and authorities, much less the American Constitution, are of dubious
application for these are no longer controlling within our jurisdiction and have only limited persuasive
merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign
jurisprudence some of which are hardly applicable because they have been dictated by different
constitutional settings and needs."53 Indeed, although the Philippine Constitution can trace its origins
to that of the United States, their paths of development have long since diverged. In the colorful
words of Father Bernas, "[w]e have cut the umbilical cord."

The major difference between the judicial power of the Philippine Supreme Court and that of the
U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S.
Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it
was given an expanded definition to include the power to correct any grave abuse of discretion on
the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with
respect to the power of the House of Representatives over impeachment proceedings. While the
U.S. Constitution bestows sole power of impeachment to the House of Representatives without
limitation,54 our Constitution, though vesting in the House of Representatives the exclusive power to
initiate impeachment cases,55 provides for several limitations to the exercise of such power as
embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of
filing, required vote to impeach, and the one year bar on the impeachment of one and the same
official.

Respondents are also of the view that judicial review of impeachments undermines their finality and
may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to
exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to
the judgment of the people expressed legislatively, recognizing full well the perils of judicial
willfulness and pride."56
But did not the people also express their will when they instituted the above-mentioned safeguards
in the Constitution? This shows that the Constitution did not intend to leave the matter of
impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or
in the language of Baker v. Carr,57"judicially discoverable standards" for determining the validity of
the exercise of such discretion, through the power of judicial review.

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of
the argument that the impeachment power is beyond the scope of judicial review, are not in point.
These cases concern the denial of petitions for writs of mandamus to compel the legislature to
perform non-ministerial acts, and do not concern the exercise of the power of judicial review.

There is indeed a plethora of cases in which this Court exercised the power of judicial review over
congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the
power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation
of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives.
In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate on the ground that it
contravened the Constitution, it held that the petition raises a justiciable controversy and that when
an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this
Court declared null and void a resolution of the House of Representatives withdrawing the
nomination, and rescinding the election, of a congressman as a member of the House Electoral
Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held
that the resolution of whether the House representation in the Commission on Appointments was
based on proportional representation of the political parties as provided in Section 18, Article VI of
the Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative
power is vested exclusively in Congress, this does not detract from the power of the courts to pass
upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled that
confirmation by the National Assembly of the election of any member, irrespective of whether his
election is contested, is not essential before such member-elect may discharge the duties and enjoy
the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review over
impeachment proceedings would upset the system of checks and balances. Verily, the Constitution
is to be interpreted as a whole and "one section is not to be allowed to defeat another."67 Both are
integral components of the calibrated system of independence and interdependence that insures
that no branch of government act beyond the powers assigned to it by the Constitution.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost
all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case
or controversy calling for the exercise of judicial power; (2) the person challenging the act must have
"standing" to challenge; he must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
 could only lead to dialectics and barren legal questions and to sterile conclusions unrelated
to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative departments of the
government.68 (Italics in the original)

Standing

Locus standi or legal standing or has been defined as a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the governmental act that
is being challenged. The gist of the question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions.69

Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have
standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus
curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends.

Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court
had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases
involving paramount public interest70 and transcendental importance,71 and that procedural matters
are subordinate to the need to determine whether or not the other branches of the government have
kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of
the same opinion, citing transcendental importance and the well-entrenched rule exception that,
when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in
the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this
Court, the courts will grant petitioners standing.

There is, however, a difference between the rule on real-party-in-interest and the rule on standing,
for the former is a concept of civil procedure73 while the latter has constitutional underpinnings.74 In
view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling
in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it from real
party-in-interest.

The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a particular
plaintiff is the real party in interest or has capacity to sue. Although all three requirements are
directed towards ensuring that only certain parties can maintain an action, standing
restrictions require a partial consideration of the merits, as well as broader policy concerns
relating to the proper role of the judiciary in certain areas.

Standing is a special concern in constitutional law because in some cases suits are brought
not by parties who have been personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest.
Hence the question in standing is whether such parties have "alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens
 the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."

xxx

On the other hand, the question as to "real party in interest" is whether he is "the party who
would be benefited or injured by the judgment, or the 'party entitled to the avails of the
suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts
of the House of Representatives, none of the petitioners before us asserts a violation of the personal
rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights –
as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar
and of the legal profession – which were supposedly violated by the alleged unconstitutional acts of
the House of Representatives.

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.77 In fine, when the proceeding involves the assertion of a
public right,78 the mere fact that he is a citizen satisfies the requirement of personal interest.

In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally
disbursed, or that public money is being deflected to any improper purpose, or that there is a
wastage of public funds through the enforcement of an invalid or unconstitutional law.79 Before he
can invoke the power of judicial review, however, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a
direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient
that he has merely a general interest common to all members of the public.80

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation that
any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the
Chief Justice will necessarily involve the expenditure of public funds.

As for a legislator, he is allowed to sue to question the validity of any official action which he claims
infringes his prerogatives as a legislator.82 Indeed, a member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in
his office.83

While an association has legal personality to represent its members,84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty
to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it
with standing. Its interest is too general. It is shared by other groups and the whole citizenry.
However, a reading of the petitions shows that it has advanced constitutional issues which deserve
the attention of this Court in view of their seriousness, novelty and weight as precedents.86 It,
therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by
it.

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court to
deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether favorable
or unfavorable to the class, is, under the res judicata principle, binding on all members of the class
whether or not they were before the court.89 Where it clearly appears that not all interests can be
sufficiently represented as shown by the divergent issues raised in the numerous petitions before
this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionallyallege standing
as citizens and taxpayers, however, their petition will stand.

The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.

There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1)
the character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and specific
interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied
that the issues raised herein are indeed of transcendental importance.

In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental significance to the people, as when
the issues raised are of paramount importance to the public.91 Such liberality does not, however,
mean that the requirement that a party should have an interest in the matter is totally eliminated. A
party must, at the very least, still plead the existence of such interest, it not being one of which
courts can take judicial notice. In petitioner Vallejos' case, he failed to allege any interest in the case.
He does not thus have standing.

With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof. While intervention is
not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy
the requirements of the law authorizing intervention.92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the
same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al.
has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene
and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join
petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that
"they will suffer if this insidious scheme of the minority members of the House of Representatives is
successful," this Court found the requisites for intervention had been complied with.

Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise
the additional issue of whether or not the second impeachment complaint against the Chief Justice is
valid and based on any of the grounds prescribed by the Constitution.

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and
World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in
litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making
of record and arguing a point of view that differs with Senate President Drilon's. He alleges that
submitting to this Court's jurisdiction as the Senate President does will undermine the independence
of the Senate which will sit as an impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal
interest in the matter in litigation, he being a member of Congress against which the herein petitions
are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at
hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue.

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts
an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as
set forth in Dumlao v. Comelec,93 to wit:

x x x While, concededly, the elections to be held involve the expenditure of public moneys,
nowhere in their Petition do said petitioners allege that their tax money is "being extracted
and spent in violation of specific constitutional protection against abuses of legislative
power," or that there is a misapplication of such funds by respondent COMELEC, or that
public money is being deflected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners
will result in illegal disbursement of public funds or in public money being deflected to any improper
purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with
standing.

Ripeness and Prematurity

In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been accomplished
or performed by either branch before a court may come into the picture."96 Only then may the courts
pass on the validity of what was done, if and when the latter is challenged in an appropriate legal
proceeding.

The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules
adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts
having been carried out, i.e., the second impeachment complaint had been filed with the House of
Representatives and the 2001 Rules have already been already promulgated and enforced, the
prerequisite that the alleged unconstitutional act should be accomplished and performed before suit,
as Tan v. Macapagal holds, has been complied with.

Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no
urgent need for this Court to render a decision at this time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all remedies in the House and Senate should
first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this
Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules
provide for an opportunity for members to raise constitutional questions themselves when the
Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean
maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can
raise the issue of their constitutional infirmity by way of a motion to dismiss.

The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity.
Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint
since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the
Constitution97 and, therefore, petitioners would continue to suffer their injuries.

Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither the
House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the
issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power
is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution.
Remedy cannot be sought from a body which is bereft of power to grant it.

Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:

[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government." It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure.99(Italics in the
original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this
Court vacillated on its stance of taking cognizance of cases which involved political questions. In
some cases, this Court hid behind the cover of the political question doctrine and refused to exercise
its power of judicial review.100 In other cases, however, despite the seeming political nature of the
therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed
limits on powers or functions conferred upon political bodies.101 Even in the landmark 1988 case
of Javellana v. Executive Secretary102 which raised the issue of whether the 1973 Constitution was
ratified, hence, in force, this Court shunted the political question doctrine and took cognizance
thereof. Ratification by the people of a Constitution is a political question, it being a question decided
by the people in their sovereign capacity.

The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when
he became a Constitutional Commissioner, to clarify this Court's power of judicial review and its
application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the
judiciary is the weakest among the three major branches of the service. Since the legislature holds
the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions
or commands except the power of reason and appeal to conscience which, after all, reflects the will
of God, and is the most powerful of all other powers without exception. x x x And so, with the body's
indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal defense at
all, the solicitor general set up the defense of political questions and got away with it.
As a consequence, certain principles concerning particularly the writ of habeas
corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said: "Well,
since it is political, we have no authority to pass upon it." The Committee on the Judiciary
feels that this was not a proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in effect, encouraged
further violations thereof during the martial law regime. I am sure the members of the
Bar are familiar with this situation. But for the benefit of the Members of the Commission who
are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973
on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was
announced on September 22, although the proclamation was dated September 21. The
obvious reason for the delay in its publication was that the administration had apprehended
and detained prominent newsmen on September 21. So that when martial law was
announced on September 22, the media hardly published anything about it. In fact, the
media could not publish any story not only because our main writers were already
incarcerated, but also because those who succeeded them in their jobs were under mortal
threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention
had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it
had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the
proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens
of them, were picked up. One of them was our very own colleague, Commissioner Calderon.
So, the unfinished draft of the Constitution was taken over by representatives of
Malacañang. In 17 days, they finished what the delegates to the 1971 Constitutional
Convention had been unable to accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December 1, 1972, whereupon the
President issued a decree calling a plebiscite which suspended the operation of some
provisions in the martial law decree which prohibited discussions, much less public
discussions of certain matters of public concern. The purpose was presumably to allow a
free discussion on the draft of the Constitution on which a plebiscite was to be held
sometime in January 1973. If I may use a word famous by our colleague, Commissioner
Ople, during the interregnum, however, the draft of the Constitution was analyzed and
criticized with such a telling effect that Malacañang felt the danger of its approval. So, the
President suspended indefinitely the holding of the plebiscite and announced that he would
consult the people in a referendum to be held from January 10 to January 15. But the
questions to be submitted in the referendum were not announced until the eve of its
scheduled beginning, under the supposed supervision not of the Commission on Elections,
but of what was then designated as "citizens assemblies or barangays." Thus the barangays
came into existence. The questions to be propounded were released with proposed answers
thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given
in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a
motion was filed with the Supreme Court praying that the holding of the referendum be
suspended. When the motion was being heard before the Supreme Court, the Minister of
Justice delivered to the Court a proclamation of the President declaring that the new
Constitution was already in force because the overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately after the departure of the Minister of
Justice, I proceeded to the session room where the case was being heard. I then informed
the Court and the parties the presidential proclamation declaring that the 1973 Constitution
had been ratified by the people and is now in force.

A number of other cases were filed to declare the presidential proclamation null and void.
The main defense put up by the government was that the issue was a political question and
that the court had no jurisdiction to entertain the case.

xxx

The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified of any referendum in their
respective places of residence, much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members of
the Court felt that there had been no referendum.

Second, a referendum cannot substitute for a plebiscite. There is a big difference between
a referendum and a plebiscite. But another group of justices upheld the defense that
the issue was a political question. Whereupon, they dismissed the case. This is not
the only major case in which the plea of "political question" was set up. There have
been a number of other cases in the past.

x x x The defense of the political question was rejected because the issue was clearly
justiciable.
 xxx

x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?

The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable. There are
rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided
case, a husband complained that his wife was unwilling to perform her duties as a wife. The
Court said: "We can tell your wife what her duties as such are and that she is bound to
comply with them, but we cannot force her physically to discharge her main marital duty to
her husband. There are some rights guaranteed by law, but they are so personal that to
enforce them by actual compulsion would be highly derogatory to human dignity."

This is why the first part of the second paragraph of Section I provides that:

Judicial power includes the duty of courts to settle actual controversies involving rights which
are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another important
function. The powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each one is supreme
within its own sphere and independent of the others. Because of that supremacy
power to determine whether a given law is valid or not is vested in courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the judiciary
is the final arbiter on the question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously
as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters
of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that such
matters constitute a political question.

I have made these extended remarks to the end that the Commissioners may have an initial
food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied)

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified
the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is
not vested in the Supreme Court alone but also in other lower courts as may be
created by law.

MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example?

 MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political
questions with jurisdictional questions. But there is a difference.

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where
there is a question as to whether the government had authority or had abused its
authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a
political question. Therefore, the court has the duty to decide.

xxx

FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court
according to the new numerical need for votes.

On another point, is it the intention of Section 1 to do away with the political question
doctrine?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting

to a lack of jurisdiction. . .

FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with
the political question doctrine.

MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial power.
But the Gentleman will notice it says, "judicial power includes" and the reason being
that the definition that we might make may not cover all possible areas.

FR. BERNAS. So, this is not an attempt to solve the problems arising from the political
question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that
judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere
specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to
clarify, however, that Section 1, Article VIII was not intended to do away with "truly political
questions." From this clarification it is gathered that there are two species of political questions: (1)
"truly political questions" and (2) those which "are not truly political questions."

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the
Constitution, courts can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court
has in fact in a number of cases taken jurisdiction over questions which are not truly political
following the effectivity of the present Constitution.

In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide.106 x x x

In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction
to delimit constitutional boundaries has been given to this Court. It cannot abdicate
that obligation mandated by the 1987 Constitution, although said provision by no
means does away with the applicability of the principle in appropriate
cases."108 (Emphasis and underscoring supplied)

And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)

Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-
justiciable political questions, however. Identification of these two species of political questions may
be problematic. There has been no clear standard. The American case of Baker v. Carr111 attempts
to provide some:

x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for questioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on one
question.112(Underscoring supplied)

Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially
discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion. These standards are not
separate and distinct concepts but are interrelated to each in that the presence of one strengthens
the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review is
radically different from our current concept, for Section 1, Article VIII of the Constitution provides our
courts with far less discretion in determining whether they should pass upon a constitutional issue.

In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such limits.
This Court shall thus now apply this standard to the present controversy.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.

II. Whether the second impeachment complaint was filed in accordance with Section 3(4),
Article XI of the Constitution.

III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal
autonomy of the judiciary.

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th
Congress are unconstitutional for violating the provisions of Section 3, Article XI of the
Constitution.

V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of
the Constitution.

The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require this
Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of
these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an
examination of the records of the 1986 Constitutional Commission shows that the framers could find
no better way to approximate the boundaries of betrayal of public trust and other high crimes than by
alluding to both positive and negative examples of both, without arriving at their clear cut definition or
even a standard therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable
political question which is beyond the scope of its judicial power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission
on Elections,115 this Court held:
 x x x It is a well-established rule that a court should not pass upon a constitutional question
and decide a law to be unconstitutional or invalid, unless such question is raised by the
parties and that when it is raised, if the record also presents some other ground upon
which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a
decision upon such question will be unavoidable.116 [Emphasis and underscoring
supplied]

The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court
invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due
process, to wit:

It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into such
a question are first satisfied. Thus, there must be an actual case or controversy involving a
conflict of legal rights susceptible of judicial determination, the constitutional question must
have been opportunely raised by the proper party, and the resolution of the question is
unavoidably necessary to the decision of the case itself.118 [Emphasis supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is
the very lis mota or crux of the controversy.

As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome of
this controversy could possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by the related cannon of
adjudication that "the court should not form a rule of constitutional law broader than is required by
the precise facts to which it is applied."119

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution120 calling for a
legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise
be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of
legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the
constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of
the judiciary.121

Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this
Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is
too far removed from the issue of the validity of the second impeachment complaint. Moreover, the
resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional law
touching on the separate and distinct matter of legislative inquiries in general, which would thus be
broader than is required by the facts of these consolidated cases. This opinion is further
strengthened by the fact that said petitioners have raised other grounds in support of their petition
which would not be adversely affected by the Court's ruling.

En passant, this Court notes that a standard for the conduct of legislative inquiries has already been
enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:

The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:
 The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure.
The rights of persons appearing in or affected by such inquiries shall be respected.

The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of
the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the rights of persons
appearing in or affected by such inquiries shall be respected." It follows then that the right
rights of persons under the Bill of Rights must be respected, including the right to due
process and the right not be compelled to testify against one's self.123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the
original petition of petitioners Candelaria, et. al., introduce the new argument that since the second
impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and
Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of
the Constitution which reads:

Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least
one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

They assert that while at least 81 members of the House of Representatives signed a Resolution of
Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-
mentioned section in that the "verified complaint or resolution of impeachment" was not filed "by at
least one-third of all the Members of the House." With the exception of Representatives Teodoro and
Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a
"Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of
Endorsement which states that:

"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned

Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said
second impeachment complaint to automatically become the Articles of Impeachment and for trial in
the Senate to begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at
least one-third of the Members of the House of Representatives. Not having complied with this
requirement, they concede that the second impeachment complaint should have been calendared
and referred to the House Committee on Justice under Section 3(2), Article XI of the
Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within ten session days from
receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4),
Article XI of the Constitution to apply, there should be 76 or more representatives who signed and
verified the second impeachment complaint as complainants, signed and verified the signatories to a
resolution of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of the House of
Representatives as endorsers is not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being necessary only from at least one Member
whenever a citizen files a verified impeachment complaint.

While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the
scope of the constitutional issues to the provisions on impeachment, more compelling considerations
militate against its adoption as the lis mota or crux of the present controversy. Chief among this is
the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this
issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional
ground as the basis for deciding the instant consolidated petitions would not only render for naught
the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other
petitioners as well.

Again, the decision to discard the resolution of this issue as unnecessary for the determination of the
instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in
the petition of Candelaria, et. al., adopting the latter's arguments and issues as their own.
Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the
very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House
Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of
Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second
impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

Judicial Restraint

Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting
as an impeachment court, has the sole power to try and decide all cases of impeachment. Again,
this Court reiterates that the power of judicial review includes the power of review over justiciable
issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion
for the Court to not assume jurisdiction over the impeachment because all the Members thereof are
subject to impeachment."125But this argument is very much like saying the Legislature has a moral
compulsion not to pass laws with penalty clauses because Members of the House of
Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction
be renounced as there is no other tribunal to which the controversy may be referred."126 Otherwise,
this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More
than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant
petitions.127 In the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is
a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a
dereliction of duty."

Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it, it has
acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as
always, with detachment and fairness."129 After all, "by [his] appointment to the office, the public has
laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon
the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit
to render justice, to be unafraid to displease any person, interest or power and to be equipped with a
moral fiber strong enough to resist the temptations lurking in [his] office."130

The duty to exercise the power of adjudication regardless of interest had already been settled in the
case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent
Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof
from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were
interested parties to said case as respondents therein. This would have reduced the Tribunal's
membership to only its three Justices-Members whose disqualification was not sought, leaving them
to decide the matter. This Court held:

Where, as here, a situation is created which precludes the substitution of any Senator sitting
in the Tribunal by any of his other colleagues in the Senate without inviting the same
objections to the substitute's competence, the proposed mass disqualification, if sanctioned
and ordered, would leave the Tribunal no alternative but to abandon a duty that no other
court or body can perform, but which it cannot lawfully discharge if shorn of the participation
of its entire membership of Senators.

To our mind, this is the overriding consideration — that the Tribunal be not prevented from
discharging a duty which it alone has the power to perform, the performance of which is in
the highest public interest as evidenced by its being expressly imposed by no less than the
fundamental law.

It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution
could not have been unaware of the possibility of an election contest that would involve all
Senators—elect, six of whom would inevitably have to sit in judgment thereon. Indeed, such
possibility might surface again in the wake of the 1992 elections when once more, but for the
last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme
or mode for settling such unusual situations or for the substitution of Senators designated to
the Tribunal whose disqualification may be sought. Litigants in such situations must simply
place their trust and hopes of vindication in the fairness and sense of justice of the Members
of the Tribunal. Justices and Senators, singly and collectively.

Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral

Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said
Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels that his personal interests or
biases would stand in the way of an objective and impartial judgment. What we are merely
saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally
function as such, absent its entire membership of Senators and that no amendment of its
Rules can confer on the three Justices-Members alone the power of valid adjudication of a
senatorial election contest.

More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is
nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
 judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is
the case with the Justices of this Court, the deprivation of his or their judicial power is
equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of
judicial independence. The proposed mass disqualification, if sanctioned and ordered, would
leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if
shorn of the participation of its entire membership of Justices.133 (Italics in the original)

Besides, there are specific safeguards already laid down by the Court when it exercises its power of
judicial review.

In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary
proceeding, declining because to decide such questions 'is legitimate only in the last resort,
and as a necessity in the determination of real, earnest and vital controversy between
individuals. It never was the thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the constitutionality of the legislative
act.'

2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of
deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case.'

3. The Court will not 'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case may be disposed of.
This rule has found most varied application. Thus, if a case can be decided on either of two
grounds, one involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter. Appeals from the highest
court of a state challenging its decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an independent state
ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to
show that he is injured by its operation. Among the many applications of this rule, none is
more striking than the denial of the right of challenge to one who lacks a personal or property
right. Thus, the challenge by a public official interested only in the performance of his official
duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a
suit brought by a citizen who sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was
not entertained although made by the Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who
has availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain
 whether a construction of the statute is fairly possible by which the question may be avoided
(citations omitted).

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different
decisions of the United States Supreme Court, can be encapsulated into the following categories:

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required by the facts of the case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the operation of the statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial
review:

1. actual case or controversy calling for the exercise of judicial power

2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement

3. the question of constitutionality must be raised at the earliest possible opportunity

4. the issue of constitutionality must be the very lis mota of the case.136

Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility
that "judicial review of impeachments might also lead to embarrassing conflicts between the
Congress and the [J]udiciary." They stress the need to avoid the appearance of impropriety or
conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating
and risk serious political instability at home and abroad if the judiciary countermanded the vote of
Congress to remove an impeachable official.137 Intervenor Soriano echoes this argument by alleging
that failure of this Court to enforce its Resolution against Congress would result in the diminution of
its judicial authority and erode public confidence and faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a crisis.

Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not regarded as
settled until the Supreme Court has passed upon the constitutionality of the act involved, the
judgment has not only juridical effects but also political consequences. Those political
consequences may follow even where the Court fails to grant the petitioner's prayer to nullify
 an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way
or the other, itself constitutes a decision for the respondent and validation, or at least quasi-
validation, follows." 138

Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not
enough votes either to grant the petitions, or to sustain respondent's claims,"140 the pre-existing
constitutional order was disrupted which paved the way for the establishment of the martial law
regime.

Such an argument by respondents and intervenor also presumes that the coordinate branches of the
government would behave in a lawless manner and not do their duty under the law to uphold the
Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches
of government will behave in a precipitate manner and risk social upheaval, violence, chaos and
anarchy by encouraging disrespect for the fundamental law of the land.

Substituting the word public officers for judges, this Court is well guided by the doctrine in People v.
Veneracion, to wit:141

Obedience to the rule of law forms the bedrock of our system of justice. If [public officers],
under the guise of religious or political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise the duties of their office, then
law becomes meaningless. A government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority. Under this system, [public officers]
are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor,"
resist encroachments by governments, political parties, or even the interference of their own
personal beliefs.142

Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress

Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and
17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our
present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is
clear in that it is the House of Representatives, as a collective body, which has the exclusive power
to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can,
as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1)
by a verified complaint for impeachment by any member of the House of Representatives; or (2) by
any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the
members of the House. Respondent House of Representatives concludes that the one year bar
prohibiting the initiation of impeachment proceedings against the same officials could not have been
violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices
had not been initiated as the House of Representatives, acting as the collective body, has yet to act
on it.

The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory
construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during
the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus
curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at
which he added that the act of "initiating" included the act of taking initial action on the complaint,
dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the
Constitution means to file the complaint and take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to

commence, or set going. As Webster's Third New International Dictionary of the English Language
concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice
Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the
instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles of
impeachment to the Senate. The middle consists of those deliberative moments leading to
the formulation of the articles of impeachment. The beginning or the initiation is the filing of
the complaint and its referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco
and Fuentebella says that impeachment is "deemed initiated" when the Justice Committee
votes in favor of impeachment or when the House reverses a contrary vote of the
Committee. Note that the Rule does not say "impeachment proceedings" are initiated but
rather are "deemed initiated." The language is recognition that initiation happened earlier, but
by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis
and underscoring supplied)

As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the
law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive
provisions on impeachment, I understand there have been many proposals and, I think,
these would need some time for Committee action.

However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this body.
This is borne out of my experience as a member of the Committee on Justice, Human Rights
and Good Government which took charge of the last impeachment resolution filed before the
First Batasang Pambansa. For the information of the Committee, the resolution covers
several steps in the impeachment proceedings starting with initiation, action of the
Speaker committee action, calendaring of report, voting on the report, transmittal
referral to the Senate, trial and judgment by the Senate.

xxx

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment on
the floor. The procedure, as I have pointed out earlier, was that the initiation starts with
the filing of the complaint. And what is actually done on the floor is that the committee
resolution containing the Articles of Impeachment is the one approved by the body.

As the phraseology now runs, which may be corrected by the Committee on Style, it appears
that the initiation starts on the floor. If we only have time, I could cite examples in the case of
 the impeachment proceedings of President Richard Nixon wherein the Committee on the
Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to
the body, and it was the body who approved the resolution. It is not the body which
initiates it. It only approves or disapproves the resolution. So, on that score, probably
the Committee on Style could help in rearranging these words because we have to be very
technical about this. I have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on
the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has
already decided. Nevertheless, I just want to indicate this on record.

xxx

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3
(3). My reconsideration will not at all affect the substance, but it is only in keeping with the
exact formulation of the Rules of the House of Representatives of the United States
regarding impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now read:
"A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override
its contrary resolution. The vote of each Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on
line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of
the House. I will mention again, Madam President, that my amendment will not vary the
substance in any way. It is only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you, Madam President.143 (Italics in
the original; emphasis and udnerscoring supplied)

This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144

It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting the
phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section
3 (3) was to settle and make it understood once and for all that the initiation of impeachment
proceedings starts with the filing of the complaint, and the vote of one-third of the House in a
resolution of impeachment does not initiate the impeachment proceedings which was already
initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the
Constitution."145

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who
was also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article
XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an
action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.

xxx

(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in
the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that must
be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-
third of all its members, can bring a case to the Senate. It is in that sense that the House has
"exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a
decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a
conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium,
means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle,
and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there
is the filing of a verified complaint either by a Member of the House of Representatives or by a
private citizen endorsed by a Member of the House of the Representatives; (2) there is the
processing of this complaint by the proper Committee which may either reject the complaint or
uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution
must be forwarded to the House for further processing; and (4) there is the processing of the same
complaint by the House of Representatives which either affirms a favorable resolution of the
Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one
third of all the Members upholds the complaint, Articles of Impeachment are prepared and
transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at
this point that an impeachable public official is successfully impeached. That is, he or she is
successfully charged with an impeachment "case" before the Senate as impeachment court.

Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the end of the House proceeding and the beginning
of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the
House deliberates on the resolution passed on to it by the Committee, because something prior to
that has already been done. The action of the House is already a further step in the proceeding, not
its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is
filed and referred to the Committee on Justice for action. This is the initiating step which triggers the
series of steps that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of the
House shall be necessary… to initiate impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House does not initiate impeachment proceeding
but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the present
Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action. By
his explanation, this interpretation is founded on the common understanding of the meaning of "to
initiate" which means to begin. He reminds that the Constitution is ratified by the people, both
ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning
into ordinary words and not abstruse meaning, they ratify words as they understand it and not as
sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive
power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to
the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment
proceeding."

From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the
impeachment complaint coupled with Congress' taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or endorsement of the
impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of
the members of the House of Representatives with the Secretary General of the House, the meaning
of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated,
another impeachment complaint may not be filed against the same official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings
are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified
complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or
overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not
sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House
of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the
members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give
the term "initiate" a meaning different meaning from filing and referral.

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v.
Avelino147 wherein this Court stated that "their personal opinions (referring to Justices who were
delegates to the Constitution Convention) on the matter at issue expressed during this Court's our
deliberations stand on a different footing from the properly recorded utterances of debates and
proceedings." Further citing said case, he states that this Court likened the former members of the
Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent
spectators may know more about the real meaning because of the latter's balanced perspectives
and disinterestedness.148

Justice Gutierrez's statements have no application in the present petitions. There are at present only
two members of this Court who participated in the 1986 Constitutional Commission – Chief Justice
Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for
obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by
members of the Constitutional Commission, but has examined the records of the deliberations and
proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and
unequivocal that it and only it has the power to make and interpret its rules governing impeachment.
Its argument is premised on the assumption that Congress has absolute power to promulgate its
rules. This assumption, however, is misplaced.

Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on
impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence,
these rules cannot contravene the very purpose of the Constitution which said rules were intended to
effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on
its power to make rules, viz:

Section 3. (1) x x x

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary to either
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have the
power to alter or amend the meaning of the Constitution without need of referendum.

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of Congress
to interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its
members. However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later
Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United
States v. Smith,151 declared that where the construction to be given to a rule affects persons other
than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De
Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for
this Court, held that while the Constitution empowers each house to determine its rules of
proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and
further that there should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained. It is only within these limitations
that all matters of method are open to the determination of the Legislature. In the same case
of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was
even more emphatic as he stressed that in the Philippine setting there is even more reason for
courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of power if
we assume jurisdiction over he case at bar. Even in the United States, the principle of
separation of power is no longer an impregnable impediment against the interposition of
judicial power on cases involving breach of rules of procedure by legislators.

Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the
issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:

"x x x

"The Constitution, in the same section, provides, that each house may determine the rules of
its proceedings." It appears that in pursuance of this authority the House had, prior to that
day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be noted
by the clerk and recorded in the journal, and reported to the Speaker with the names of the
members voting, and be counted and announced in determining the presence of a quorum to
do business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is as to
the validity of this rule, and not what methods the Speaker may of his own motion resort to
for determining the presence of a quorum, nor what matters the Speaker or clerk may of their
own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom
or folly, of such a rule present any matters for judicial consideration. With the courts the
question is only one of power. The Constitution empowers each house to determine its
rules of proceedings. It may not by its rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable relation between the mode or
method of proceedings established by the rule and the result which is sought to be
attained. But within these limitations all matters of method are open to the determination of
the House, and it is no impeachment of the rule to say that some other way would be better,
more accurate, or even more just. It is no objection to the validity of a rule that a different one
has been prescribed and in force for a length of time. The power to make rules is not one
which once exercised is exhausted. It is a continuous power, always subject to be exercised
by the House, and within the limitations suggested, absolute and beyond the challenge of
any other body or tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined by the
Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint;
(2) it did not violate any fundamental right; and (3) its method had a reasonable relationship
with the result sought to be attained. By examining Rule XV, the Court did not allow its
jurisdiction to be defeated by the mere invocation of the principle of separation of powers.154

xxx

In the Philippine setting, there is a more compelling reason for courts to categorically
reject the political question defense when its interposition will cover up abuse of
power. For section 1, Article VIII of our Constitution was intentionally cobbled to
empower courts "x x x to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new and was not granted to our courts
in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or
any foreign state constitution. The CONCOM granted this enormous power to our
courts in view of our experience under martial law where abusive exercises of state
power were shielded from judicial scrutiny by the misuse of the political question
doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of the judiciary vis-à-vis the Executive and
the Legislative departments of government.155

xxx

The Constitution cannot be any clearer. What it granted to this Court is not a mere power
which it can decline to exercise. Precisely to deter this disinclination, the Constitution
imposed it as a duty of this Court to strike down any act of a branch or instrumentality
of government or any of its officials done with grave abuse of discretion amounting to
lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the
checking powers of this Court against the other branches of government despite their more
democratic character, the President and the legislators being elected by the people.156

xxx

The provision defining judicial power as including the 'duty of the courts of justice. . . to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis-à-vis the other branches of government. This provision was dictated
by our experience under martial law which taught us that a stronger and more independent
judiciary is needed to abort abuses in government. x x x

xxx

In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court from
passivity to activism. This transformation, dictated by our distinct experience as nation, is not
merely evolutionary but revolutionary.Under the 1935 and the 1973 Constitutions, this Court
approached constitutional violations by initially determining what it cannot do; under the
1987 Constitution, there is a shift in stress – this Court is mandated to approach
constitutional violations not by finding out what it should not do but what
it must do. The Court must discharge this solemn duty by not resuscitating a past that
petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of our
power to review violations of the rules of the House. We will not be true to our trust as the
last bulwark against government abuses if we refuse to exercise this new power or if
we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the
judicial sword that has increasingly emboldened other branches of government to
denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly
 Filipino and its interpretation should not be depreciated by undue reliance on inapplicable
foreign jurisprudence. In resolving the case at bar, the lessons of our own history should
provide us the light and not the experience of foreigners.157 (Italics in the original emphasis
and underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.

Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that
this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment
Rules. As already observed, the U.S. Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment." It adds nothing more. It gives no clue
whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus,
the US Supreme Court concluded that there was a textually demonstrable constitutional commitment
of a constitutional power to the House of Representatives. This reasoning does not hold with regard
to impeachment power of the Philippine House of Representatives since our Constitution, as earlier
enumerated, furnishes several provisions articulating how that "exclusive power" is to be exercised.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that
impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-
General of the House of Representatives of a verified complaint or a resolution of impeachment by
at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they
give the term "initiate" a meaning different from "filing."

Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment complaint and
referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3
(5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing
manner, another may not be filed against the same official within a one year period following Article
XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.

Conclusion

If there is anything constant about this country, it is that there is always a phenomenon that takes the
center stage of our individual and collective consciousness as a people with our characteristic flair
for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two weeks have proven to be
an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a
dialectical struggle to articulate what they respectively believe to be the correct position or view on
the issues involved. Passions had ran high as demonstrators, whether for or against the
impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to
air their voice on the matter. Various sectors of society - from the business, retired military, to the
academe and denominations of faith – offered suggestions for a return to a state of normalcy in the
official relations of the governmental branches affected to obviate any perceived resulting instability
upon areas of national life.

Through all these and as early as the time when the Articles of Impeachment had been constituted,
this Court was specifically asked, told, urged and argued to take no action of any kind and form with
respect to the prosecution by the House of Representatives of the impeachment complaint against
the subject respondent public official. When the present petitions were knocking so to speak at the
doorsteps of this Court, the same clamor for non-interference was made through what are now the
arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the
Court from any move that may have a bearing on the impeachment proceedings.

This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned.
To reiterate what has been already explained, the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested power and duty of judicial review over an
issue whose resolution precisely called for the construction or interpretation of a provision of the
fundamental law of the land. What lies in here is an issue of a genuine constitutional material which
only this Court can properly and competently address and adjudicate in accordance with the clear-
cut allocation of powers under our system of government. Face-to-face thus with a matter or problem
that squarely falls under the Court's jurisdiction, no other course of action can be had but for it to
pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the process of impeachment
has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the
main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed
the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming
jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political
questions. Because it is not at all the business of this Court to assert judicial dominance over the
other two great branches of the government. Rather, the raison d'etre of the judiciary is to
complement the discharge by the executive and legislative of their own powers to bring about
ultimately the beneficent effects of having founded and ordered our society upon the rule of law.

It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is that
of the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected
by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations
could be made to it, so long as it rendered judgment according to the law and the facts. Why can it
not now be trusted to wield judicial power in these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him
but the validity of a government branch's official act as tested by the limits set by the Constitution?
Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case
in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the
Supreme Court as likely incapable of impartiality when one of its members is a party to a case,
which is simply a non sequitur.

No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of its
agents to secure respect for and obedience to its commands. Perhaps, there is no other government
branch or instrumentality that is most zealous in protecting that principle of legal equality other than
the Supreme Court which has discerned its real meaning and ramifications through its application to
numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice
is not above the law and neither is any other member of this Court. But just because he is the Chief
Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of
every individual's rights irrespective of his station in life.

The Filipino nation and its democratic institutions have no doubt been put to test once again by this
impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no
other than the Constitution in search for a solution to what many feared would ripen to a crisis in
government. But though it is indeed immensely a blessing for this Court to have found answers in
our bedrock of legal principles, it is equally important that it went through this crucible of a
democratic process, if only to discover that it can resolve differences without the use of force and
aggression upon each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment

Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G.
Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on October 23,
2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.

SO ORDERED.

Bellosillo and Tinga, JJ., see separate opinion.

Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.

Footnotes

1 Rollo, G.R. No. 160261 at 180-182; Annex "H."

2Per Special Appearance with Manifestation of House Speaker Jose C. De Venecia, Jr.
(Rollo, G.R. No. 160261 at 325-363) the pertinent House Resolution is HR No. 260, but no
copy of the same was submitted before this Court.
3 Id. at 329. Created through PD No. 1949 (July 18, 1984), the JDF was established "to help
ensure and guarantee the independence of the Judiciary as mandated by the Constitution
and public policy and required by the impartial administration of justice" by creating a special
fund to augment the allowances of the members and personnel of the Judiciary and to
finance the acquisition, maintenance and repair of office equipment and facilities."

4 Rollo, G.R. No. 160261 at 120-139; Annex "E."

5 The initial complaint impleaded only Justices Artemio V. Panganiban, Josue N. Bellosillo,
Reynato S. Puno, Antonio T. Carpio and Renato C. Corona, and was later amended to
include Justices Jose C. Vitug, and Leonardo A. Quisumbing.

6 Supra note 4 at 123-124.

7 Rollo, G.R. No. 160403 at 48-53; Annex "A."

8 http://www.congress.gov.ph/search/bills/hist_show.php?bill_no=RPT9999

9 Rollo, G.R. No. 160262 at 8.

10 Rollo, G.R. No. 160295 at 11.

11 Rollo, G.R. No. 160262 at 43-84; Annex "B."

12 Supra note 2.

13
A perusal of the attachments submitted by the various petitioners reveals the following
signatories to the second impeachment complaint and the accompanying
Resolution/Endorsement. 1. Gilbert Teodoro, Jr., NPC, Tarlac (principal complainant) 2. Felix
Fuentebella, NPC, Camarines Sur (second principal complainant) 3. Julio Ledesma, IV,
NPC, Negros Occidental 4. Henry Lanot, NPC, Lone District of Pasig City 5. Kim Bernardo-
Lokin, Party List-CIBAC 6. Marcelino Libanan, NPC, Lone District of Eastern Samar,
(Chairman, House Committee on Justice) 7. Emmylou Talino-Santos, Independent, 1st
District, North Cotobato 8. Douglas RA. Cagas, NPC, 1st District, Davao del Sur 9. Sherwin
Gatchalian, NPC, 1st District, Valenzuela City 10. Luis Bersamin, Jr., PDSP-PPC, Lone
District of Abra 11. Nerissa Soon-Ruiz Alayon, 6th District, Cebu 12. Ernesto Nieva, Lakas,
1st District, Manila 13. Edgar R. Erice, Lakas, 2nd District, Kalookan City 14. Ismael Mathay
III, Independent, 2nd District, Quezon City 15. Samuel Dangwa, Reporma, Lone District of
Benguet 16. Alfredo Marañon, Jr., NPC, 2nd District, Negros Occidental 17. Cecilia Jalosjos-
Carreon, Reporma, 1st District, Zamboanga del Norte 18. Agapito A. Aquino, LDP, 2nd
District, Makati City 19. Fausto L. Seachon, Jr., NPC, 3rd District, Masbate 20. Georgilu
Yumul-Hermida, Pwersa ng Masa, 4th District, Quezon 21. Jose Carlos Lacson, Lakas, 3rd
District, Negros Occidental 22. Manuel C. Ortega, NPC, 1st District, La Union 23. Uliran
Joaquin, NPC, 1st District, Laguna 24. Soraya C. Jaafar, Lakas, Lone District of Tawi-Tawi
25. Wilhelmino Sy-Alvarado, Lakas, 1st District, Bulacan 26. Claude P. Bautista, NPC, 2nd
District, Davao Del Sur 27. Del De Guzman, Lakas, Lone District of Marikina City 28.
Zeneida Cruz-Ducut, NPC, 2nd District, Pampanga 29. Augusto Baculio, Independent-LDP,
2nd District, Misamis Oriental 30. Faustino Dy III, NPC-Lakas, 3rd District, Isabela 31.
Agusto Boboy Syjuco, Lakas, 2nd District, Iloilo 32. Rozzano Rufino B. Biazon, LDP, Lone
District of Muntinlupa City 33. Leovigildo B. Banaag, NPC-Lakas, 1st District, Agusan del
Norte 34. Eric Singson, LP, 2nd District, Ilocos Sur 35. Jacinto Paras, Lakas, 1st District,
Negros Oriental 36. Jose Solis, Independent, 2nd District, Sorsogon 37. Renato B. Magtubo,
Party List-Partido ng Manggagawa 38. Herminio G. Teves, Lakas, 3rd District, Negros
Oriental 39. Amado T. Espino, Jr., Lakas, 2nd District, Pangasinan 40. Emilio Macias, NPC,
2nd District, Negros Oriental 41. Arthur Y. Pingoy, Jr., NPC, 2nd District, South Cotobato 42.
Francis Nepomuceno, NPC, 1st District, Pampanga 43. Conrado M. Estrella III, NPC, 6th
District, Pangasinan 44. Elias Bulut, Jr., NPC, Lone District of Apayao 45. Jurdin Jesus M.
Romualdo, NPC, Lone District of Camiguin 46. Juan Pablo Bondoc, NPC, 4th District,
Pampanga 47. Generoso DC. Tulagan, NPC, 3rd District, Pangasinan 48. Perpetuo Ylagan,
Lakas, Lone District of Romblon 49. Michael Duavit, NPC, 1st District, Rizal 50. Joseph Ace
H. Durano, NPC, 5th District, Cebu 51. Jesli Lapus, NPC, 3rd District, Tarlac 52. Carlos Q.
Cojuangco, NPC, 4th District, Negros Occidental 53. Georgidi B. Aggabao, NPC, 4th District,
Santiago, Isabela 54. Francis Escudero, NPC, 1st District, Sorsogon 55. Rene M. Velarde,
Party List-Buhay 56. Celso L. Lobregat, LDP, Lone District of Zamboanga City 57. Alipio
Cirilo V. Badelles, NPC, 1st District, Lanao del Norte 58. Didagen P. Dilangalen, Pwersa ng
Masa, Lone District of Maguindanao 59. Abraham B. Mitra, LDP, 2nd District, Palawan 60.
Joseph Santiago, NPC, Lone District of Catanduanes 61. Darlene Antonino-Custodio, NPC,
1st District of South Cotobato & General Santos City 62. Aleta C. Suarez, LP, 3rd District,
Quezon 63. Rodolfo G. Plaza, NPC, Lone District of Agusan del Sur 64. JV Bautista, Party
List-Sanlakas 65. Gregorio Ipong, NPC, 2nd District, North Cotabato 66. Gilbert C. Remulla,
LDP, 2nd District, Cavite 67. Rolex T. Suplico, LDP, 5th District, Iloilo 68. Celia Layus, NPC,
Cagayan 69. Juan Miguel Zubiri, Lakas, 3rd District, Bukidnon 70. Benasing Macarambon
Jr,. NPC, 2nd District, Lanao del Sur 71. Josefina Joson, NPC, Lone District of Nueva Ecija
72. Mark Cojuangco, NPC, 5th District, Pangasinan 73. Mauricio Domogan, Lakas, Lone
District of Baguio City 74. Ronaldo B. Zamora, Pwersa ng Masa, Lone District of San Juan
75. Angelo O. Montilla, NPC, Lone District of Sultan Kudarat 76. Roseller L. Barinaga, NPC,
2nd District, Zamboanga del Norte 77. Jesnar R. Falcon, NPC, 2nd District, Surigao del Sur
78. Ruy Elias Lopez, NPC, 3rd District, Davao City.

14Rollo, G.R. No. 160261 at 5. Petitioner had previously filed two separate impeachment
complaints before the House of Representatives against Ombudsman Aniano Desierto.

15299 SCRA 744 (1998). In Chavez v. PCGG, petitioner Chavez argued that as a taxpayer
and a citizen, he had the legal personality to file a petition demanding that the PCGG make
public any and all negotiations and agreements pertaining to the PCGG's task of recovering
the Marcoses' ill-gotten wealth. Petitioner Chavez further argued that the matter of
recovering the ill-gotten wealth of the Marcoses is an issue of transcendental importance to
the public. The Supreme Court, citing Tañada v. Tuvera, 136 SCRA 27 (1985), Legaspi v.
Civil Service Commission, 150 SCRA 530 (1987) and Albano v. Reyes, 175 SCRA 264
(1989) ruled that petitioner had standing. The Court, however, went on to elaborate that in
any event, the question on the standing of petitioner Chavez was rendered moot by the
intervention of the Jopsons who are among the legitimate claimants to the Marcos wealth.

16
384 SCRA 152 (2002). In Chavez v. PEA-Amari Coastal Bay Development Corporation,
wherein the petition sought to compel the Public Estates Authority (PEA) to disclose all facts
on its then on-going negotiations with Amari Coastal Development Corporation to reclaim
portions of Manila Bay, the Supreme Court said that petitioner Chavez had the standing to
bring a taxpayer's suit because the petition sought to compel PEA to comply with its
constitutional duties.

17 224 SCRA 792 (1993).

18Subsequent petitions were filed before this Court seeking similar relief. Other than the
petitions, this Court also received Motions for Intervention from among others, Sen. Aquilino
Pimentel, Jr., and Special Appearances by House Speaker Jose C. de Venecia, Jr., and
Senate President Franklin Drilon.

19 Supra note 2 at 10.

Justice Florenz D. Regalado, Former Constitutional Commissioners Justice Regalado E.

20

Maambong and Father Joaquin G. Bernas, SJ, Justice Hugo E. Gutierrez, Jr., Former
Minister of Justice and Solicitor General Estelito P. Mendoza, Deans Pacifico Agabin and
Raul C. Pangalangan, and Former Senate President Jovito R. Salonga,.

21 Rollo, G.R. No. 160261 at 275-292.

22 Id. at 292.

23 63 Phil 139 (1936).

24 Id. at 157-159.

Vide Alejandrino v. Quezon, 46 Phil 83 (1924); Tañada v. Cuenco, 103 Phil 1051 (1957);
25

Ynot v. Intermediate Appellate Court, 148 SCRA 659, 665 (1987).

26 Const., art. VIII, sec. 1.

27 5 US 137 (1803).

28 Id. at 180.

29 In In re Prautch, 1 Phil 132 (1902), this Court held that a statute allowing for imprisonment
for non-payment of a debt was invalid. In Casanovas v. Hord, 8 Phil 125 (1907), this Court
invalidated a statute imposing a tax on mining claims on the ground that a government grant
stipulating that the payment of certain taxes by the grantee would be in lieu of other taxes
was a contractual obligation which could not be impaired by subsequent legislation.
In Concepcion v. Paredes, 42 Phil 599 (1921), Section 148 (2) of the Administrative Code, as
amended, which provided that judges of the first instance with the same salaries would, by
lot, exchange judicial districts every five years, was declared invalid for being a usurpation of
the power of appointment vested in the Governor General. In McDaniel v. Apacible, 42 Phil
749 (1922), Act No. 2932, in so far as it declares open to lease lands containing petroleum
which have been validly located and held, was declared invalid for being a depravation of
property without due process of law. In U.S. v. Ang Tang Ho, 43 Phil 1 (1922), Act No. 2868,
in so far as it authorized the Governor-General to fix the price of rice by proclamation and to
make the sale of rice in violation of such a proclamation a crime, was declared an invalid
delegation of legislative power.

30 Vicente V. Mendoza, Sharing The Passion and Action of our Time 62-53 (2003).

31 Supra note 23.

32 Id. at 156-157.

Florentino P. Feliciano, The Application of Law: Some Recurring Aspects Of The Process
33

Of Judicial Review And Decision Making, 37 AMJJUR 17, 24 (1992).

34 Ibid.

35 I Record of the Constitutional Commission 434-436 (1986).

36 31 SCRA 413 (1970)

Id. at 422-423; Vide Baranda v. Gustilo, 165 SCRA 757, 770 (1988); Luz Farms v.
37

Secretary of the Department of Agrarian Reform, 192 SCRA 51 (1990); Ordillo v.

Commission on Elections, 192 SCRA 100 (1990).

38 194 SCRA 317 (1991).

39 Id. at 325 citing Maxwell v. Dow, 176 US 581.

40 152 SCRA 284 (1987).

41Id. at 291 citing Gold Creek Mining v. Rodriguez, 66 Phil 259 (1938), J.M. Tuason & Co.,
Inc v. Land Tenure Administration, supra note 36, and I Tañada and Fernando, Constitution
of the Philippines 21 ( Fourth Ed. ).

42 82 Phil 771 (1949).

43 Id. at 775.

44 Supra note 38.

45 Id. at 330-331.

46Id. at 337-338 citing 16 CJS 2.31; Commonwealth v. Ralph, 111 Pa. 365, 3 Atl. 220
and Household Finance Corporation v. Shaffner, 203, SW 2d, 734, 356 Mo. 808.

47 Supra note 2.

48 Citing Section 3 (6), Article VIII of the Constitution provides:

(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate.

49 Supra note 21.

50 506 U.S. 224 (1993).

Supra note 2 at 349-350 citing Gerhardt, Michael J. The Federal Impeachment Process: A
51

Constitutional and Historical Analysis, 1996, p. 119.

52 227 SCRA 100 (1993).

53 Id. at 112.

54US Constititon. Section 2. x x x The House of Representatives shall have the sole Power
of Impeachment.

551987 Constitution, Article XI, Section 3 (1). The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.

56Supra note 2 at 355 citing Agresto, The Supreme Court and Constitutional Democracy,
1984, pp. 112-113.

57 369 U.S. 186 (1962).

58
141 SCRA 263 (1986).

59 Supra note 25.

60 298 SCRA 756 (1998).

61 272 SCRA 18 (1997).

62 201 SCRA 792 (1991).

63 187 SCRA 377 (1990).

64 180 SCRA 496 (1989).

65 Supra note 25.

66 Supra note 23.

67 Civil Liberties Union v. Executive Secretary, supra note 38 at 330-331.

68 Id. at 158-159.

69IBP v. Zamora, 338 SCRA 81 (2000) citing Joya v. PCGG, 225 SCRA 568 (1993); House
International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA
703 (1987); Baker v. Carr, supra note 57.

70 Citing Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995).

71 Citing Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997).

72Citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, 163 SCRA 371, 378
(1988).

73Rule 3, Section 2. Parties in interest. — A real party in interest is the party who stands to
be benefited or injured by the judgment in the suit, or the party entitled to the avails of the
suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or
defended in the name of the real party in interest.
74 JG Summit Holdings, Inc. v. Court of Appeals, 345 SCRA 143, 152 (2000).

75 246 SCRA 540 (1995).

76 Id. at 562-564.

77Agan v. PIATCO, G.R. No. 155001, May 5, 2003 citing BAYAN v. Zamora, 342 SCRA 449,
562-563 (2000) and Baker v. Carr, supra note 57; Vide Gonzales v. Narvasa, 337 SCRA 733
(2000); TELEBAP v. COMELEC, 289 SCRA 337 (1998).

78 Chavez v. PCGG, supra note 15.

79Del Mar v. PAGCOR 346 SCRA 485, 501 (2000) citing Kilosbayan, Inc., et.al. v. Morato,
supra note 70; Dumlao v. COMELEC, 95 SCRA 392 (1980); Sanidad v. Comelec, 73 SCRA
333 (1976); Philconsa v. Mathay,18 SCRA 300 (1966); Pascual v. Secretary of Public
Works, 110 Phil 331 (1960); Vide Gonzales v. Narvasa, supra note 77; Pelaez v. Auditor
General, 15 SCRA 569 (1965); Philconsa v. Gimenez, 15 SCRA 479 (1965); Iloilo Palay &
Corn Planters Association v. Feliciano, 13 SCRA 377 (1965).

80BAYAN v. Zamora, supra note 77 citing Bugnay v. Laron, 176 SCRA 240, 251-252
(1989); Vide Del Mar v. PAGCOR, supra note 79; Gonzales v. Narvasa, supra note
77; TELEBAP v. COMELEC, supra note 77; Kilosbayan, Inc. v. Morato, supra note 70; Joya
v. PCGG, supra note 69; Dumlao v. COMELEC, supra note 79; Sanidad v. COMELEC,
supra note 79; Philconsa v. Mathay, supra note 79; Pelaez v. Auditor General, supra note
79; Philconsa v. Gimenez, supra note 79; Iloilo Palay & Corn Planters Association v.
Feliciano, supra note 79; Pascual v. Sec. of Public Works, supra note 79.

81Gonzales v. Narvasa, supra note 77 citing Dumlao v. COMELEC, supra note 79; Sanidad
v. COMELEC, supra note 79; Tan v. Macapagal, 43 SCRA 677 (1972).

82Tatad v. Garcia, Jr., 243 SCRA 436 (1995); Kilosbayan, Inc. v. Morato, supra note 70 at
140-141 citing Philconsa v. Enriquez, 235 SCRA 506 (1994); Guingona v. PCGG, 207 SCRA
659 (1992); Gonzales v. Macaraig, 191 SCRA 452 (1990); Tolentino v. COMELEC, 41 SCRA
702 (1971).

83 Del Mar v. PAGCOR, supra note 79 at 502-503 citing Philconsa v. Mathay, supra note 79.

84Chinese Flour Importers Association v. Price Stabilization Board, 89 Phil 439, 461
(1951) citing Gallego et al. vs. Kapisanan Timbulan ng mga Manggagawa, 46 Off. Gaz,
4245.

Philippine Constitution Association v. Gimenez, supra note 79 citing Gonzales v.

85

Hechanova, 118 Phil. 1065 (1963); Pascual v. Secretary, supra note 79.

86 Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 (2000).

87MVRS Publications, Inc. v. Islamic Da'wah Council of the Philippines, G.R. No. 135306,
January 28, 2003, citing Industrial Generating Co. v. Jenkins 410 SW 2d 658; Los Angeles
County Winans, 109 P 640; Weberpals v. Jenny, 133 NE 62.
88Mathay v. Consolidated Bank and Trust Company, 58 SCRA 559, 570-571 (1974), citing
Moore's Federal Practice 2d ed., Vol. III, pages 3423-3424; 4 Federal Rules Service, pages
454-455; Johnson, et al., vs. Riverland Levee Dist., et al., 117 2d 711, 715; Borlasa v.
Polistico, 47 Phil. 345, 348 (1925).

89MVRS Publications, Inc. v. Islamic Da'wah Council of the Philippines, supra note 87,
dissenting opinion of Justice Carpio; Bulig-bulig Kita Kamag-Anak Assoc. v. Sulpicio
Lines, 173 SCRA 514, 514-515 (1989); Re: Request of the Heirs of the Passengers of Doña
Paz, 159 SCRA 623, 627 (1988) citing Moore, Federal Practice, 2d ed., Vol. 3B, 23-257, 23-
258; Board of Optometry v. Colet, 260 SCRA 88 (1996), citing Section 12, Rule 3, Rules of
Court; Mathay v. Consolidated Bank and Trust Co., supra note 88; Oposa v. Factoran,
supra note 17.

90 Kilosbayan v. Guingona, 232 SCRA 110 (1994).

91Kilosbayan, Inc. v. Morato, supra note 70 citing Civil Liberties Union v. Executive
Secretary, supra note 38; Philconsa v. Giménez, supra note 79; Iloilo Palay and Corn
Planters Association v. Feliciano, supra note 79;Araneta v. Dinglasan, 84 Phil. 368 (1949);
vide Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Santiago v.
COMELEC, 270 SCRA 106 (1997); KMU v. Garcia, Jr., 239 SCRA 386 (1994); Joya v.
PCGG, 225 SCRA 368 (1993); Carpio v. Executive Secretary, 206 SCRA 290
(1992); Osmeña v. COMELEC, 199 SCRA 750 (1991); Basco v. PAGCOR, 197 SCRA 52
(1991); Guingona v. Carague, 196 SCRA 221 (1991); Daza v. Singson, supra note
64; Dumlao v. COMELEC, supra note 79.

92Firestone Ceramics, Inc. v. Court of Appeals, 313 SCRA 522, 531 (1999) citing Gibson vs.
Revilla, 92 SCRA 219; Magsaysay-Labrador v. Court of Appeals, 180 SCRA 266, 271
(1989).

93 Supra note 79.

94 Id. at 403.

95 Supra note 81.

96 Id. at 681.

97 SECTION 3. x x x

(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a favorable resolution with the Articles of Impeachment of the
 Committee, or override its contrary resolution. The vote of each Member shall be
recorded.

98 Supra note 25.

99 Id. at 1067.

100Vide Barcelon v. Baker, 5 Phil. 87 (1905); Montenegro v. Castañeda, 91 Phil. 882

(1952); De la Llana v. COMELEC, 80 SCRA 525 (1977).

101Vide Avelino v. Cuenco, 83 Phil. 17 (1949); Macias v. COMELEC, 3 SCRA 1

(1961); Cunanan v. Tan, Jr.,5 SCRA 1 (1962); Gonzales v. COMELEC, 21 SCRA 774
(1967); Lansang v. Garcia, 42 SCRA 448 (1971); Tolentino v. COMELEC, supra note 82.

102 50 SCRA 30 (1973).

103 Record of the Constitution Commission, Vol. 1, July 10, 1986 at 434-436.

104 Id. at 439-443.

105 177 SCRA 668 (1989).

106 Id. at 695.

107 203 SCRA 767 (1991).

108 Id. at 776 citing Gonzales v. Macaraig, 191 SCRA 452, 463 (1990).

109 Supra note 64.

110 Id. at 501.

111 Supra note 57.

112 Id. at 217.

113 2 Record of the Constitutional Commission at 286.

114 Id. at 278, 316, 272, 283-284, 286.

115 76 Phil 516 (1946).

116 Id. at 522.

117 Supra note 37.

Id. at 58 citing Association of Small Landowners in the Philippines, Inc. v. Secretary of

118

Agrarian Reform,175 SCRA 343 (1989).

 Vide concurring opinion of Justice Vicente Mendoza in Estrada v.Desierto, 353 SCRA
119

452, 550 (2001); Demetria v. Alba, 148 SCRA 208, 210-211 (1987) citing Ashwander v.
TVA, 297 U.S. 288 (1936).

120As adverted to earlier, neither a copy the Resolution nor a record of the hearings
conducted by the House Committee on Justice pursuant to said Resolution was submitted to
the Court by any of the parties.

121 Rollo, G.R. No. 160310 at 38.

122 Supra note 107.

123 Id. at 777 (citations omitted).

124 Rollo, G.R. No. 160262 at 73.

125 Supra note 2 at 342.

126 Perfecto v. Meer, 85 Phil 552, 553 (1950).

127Estrada v. Desierto, 356 SCRA 108, 155-156 (2001); Vide Abbas v. Senate Electoral
Tribunal, 166 SCRA 651 (1988); Vargas v. Rilloraza, et al., 80 Phil. 297, 315-316
(1948); Planas v. COMELEC, 49 SCRA 105 (1973), concurring opinion of J. Concepcion.

128 Philippine Judges Association v. Prado, 227 SCRA 703, 705 (1993).

129
Ibid.

130 Ramirez v. Corpuz-Macandog, 144 SCRA 462, 477 (1986).

131 Supra note 127.

132 Estrada v. Desierto, supra note 127.

133Id. at 155-156 citing Abbas, et al. v. Senate Electoral Tribunal, supra note 127; Vargas v.
Rilloraza, et al., supra note 127.

134 Supra note 119 at 210-211.

135
Supra note 119.

Board of Optometry v. Colet, 260 SCRA 88, 103 (1996); Joya v. PCGG, supra note 69 at
136

575; Macasiano v. National Housing Authority, 224 SCRA 236, 242 (1993); Santos III v.
Northwestern Airlines, 210 SCRA 256, 261-262 (1992), National Economic Protectionism
Association v. Ongpin, 171 SCRA 657, 665 (1989).

137 Supra note 2 at 353.

138 Supra note 33 at 32.

139 Supra note 102.

140 Supra note 33.

141 249 SCRA 244, 251 (1995).

142 Id. at 251.

143 2 Records of the Constitutional Commission at 342-416.

144 Id. at 416.

145 Commissioner Maambong's Amicus Curiae Brief at 15.

146 2 Record of the Constitutional Commission at 375-376, 416

147 77 Phil. 192 (1946).

148 Justice Hugo Guiterrez's Amicus Curiae Brief at 7.

149 109 Phil. 863 (1960).

150 40 SCRA 58, 68 (1971).

151 286 U.S. 6, 33 (1932).

152 277 SCRA 268, 286 (1997).

153 144 U.S. 1 (1862).

154 Supra note 152 at 304-306.

155 Id. at 311.

156 Id. at 313.

157 Supra note 152 at 314-315.

158 Supra note 50.

G.R. No. 202242 April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner,

vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR.,Respondents.

RESOLUTION

MENDOZA, J.:

This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas,
Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez
(petitioner).

By way of recapitulation, the present action stemmed from the unexpected departure of former Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House
of Congress with one (1) vote each is sanctioned by the Constitution.

On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the
following manner:

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar
Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

This disposition is immediately executory.

SO ORDERED.

On July 31, 2012, following respondents’ motion for reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on
August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in
the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the
August 3, 2012 Resolution8 reads:

WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Court’s July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9

Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10

Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12vested the power to appoint the members of the Judiciary
in the President, subject to confirmation by the Commission on Appointments. It was during these
times that the country became witness to the deplorable practice of aspirants seeking confirmation of
their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13

Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one
body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The
power became exclusive and absolute to the Executive, subject only to the condition that the
appointees must have all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to
create a separate, competent and independent body to recommend nominees to the President.

Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8,
Article VIII of the 1987 Constitution in this wise:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

From the moment of the creation of the JBC, Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.

In 1994, the seven-member composition of the JBC was substantially altered. An eighth member
1âwphi1

was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in
the JBC, with each having one-half (1/2) of a vote.17

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.

Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing only one representative from Congress in the JBC
would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not subvert the intention of the Framers
to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there be a stalemate is not exactly
correct.

While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final
resolution of this case.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the fundamental powers of
government are established, limited and defined and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic.19 The
Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.

For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular
letter "a" to describe "representative of Congress," the Filipino people through the Framers intended
that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.

A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to
be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a
tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the
Congress, voting separately."20 Another is Section 8 thereof which requires the nominee to replace
the Vice-President to be confirmed "by a majority of all the Members of both Houses of the
Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority of all its Members."22 In all these
provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.

Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on congressional representation in the JBC
because it was not in the exercise of its primary function – to legislate. JBC was created to support
the executive power to appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function.

The underlying reason for such a limited participation can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the role of each House is essential considering
that the Constitution employs precise language in laying down the functions which particular House
plays, regardless of whether the two Houses consummate an official act by voting jointly or
separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter
alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of
electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering the interplay between these two Houses.
In all these instances, each House is constitutionally granted with powers and functions peculiar to
its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, as to the other branches of government.

In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government - the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature,
not because it was in the interest of a certain constituency, but in reverence to it as a major branch
of government.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them."

Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in the
Constitution.

In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the above-
quoted provision of the Constitution. (Emphases and underscoring supplied)

On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:

8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting deadlock by reason of even-
numbered membership, and a clear violation of 7 enumerated members in the Constitution.
(Emphases and underscoring supplied)

In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:

As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each category
of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two
(2) representatives from Congress would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)

In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC
reflects the Commission’s desire "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist of representatives from the three
main branches of government while the regular members are composed of various stakeholders in
the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio
member as representing one co-equal branch of government. xxx Thus, the JBC was designed to
have seven voting members with the three ex-officio members having equal say in the choice of
judicial nominees.

xxx

No parallelism can be drawn between the representative of Congress in the JBC and the exercise by
Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers requires the Senate and the House
of Representatives to coordinate and act as distinct bodies in furtherance of Congress’ role under
our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the
two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of Representatives act as such for
one branch and should not have any more quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality
among the three branches support this conclusion. [Emphases and underscoring supplied]

The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.

From this score stems the conclusion that the lone representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence of what the Constitution authorized. After all,
basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly.
To permit or tolerate the splitting of one vote into two or more is clearly a constitutional
circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution
envisioned one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.

It is also an error for respondents to argue that the President, in effect, has more influence over the
JBC simply because all of the regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is
composed of members of Congress.

Respondents’ contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or
laches, because once an act is considered as an infringement of the Constitution it is void from the
very beginning and cannot be the source of any power or authority.

It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine
of operative facts, actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated
in Planters Products, Inc. v. Fertiphil Corporation:32

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating it.33

Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what respondents perceive as a mistake in its
mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express provisions and justify the same as
correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted."34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature
would have supplied had its attention been called to the omission, as that would be judicial
legislation."37

Stated differently, the Court has no power to add another member by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In
cases like this, no amount of practical logic or convenience can convince the Court to perform either
an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope
of congressional representation in the JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal
or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012
Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, T hereby certify that the conclusions in the
above Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes

1 Rollo, pp. 257-286.

2 Id. at 287-298.

3 Entitled "Resolution expressing the sense of the Senate that the Judicial and Bar Council
(JBC) defer the consideration of all nominees and the preparation of the short list to be
submitted to the President for the position of Chief Justice of the Supreme Court;" id. at 303-
304.

4 Entitled "Resolution expressing anew the sense of the Senate that the Senate and House
of Representatives should have one (1) representative each in the Judicial and Bar Council
(JBC) and that each representative is entitled to a full vote;" id. at 305-307.

5 Entitled "Resolution to file an urgent motion with the Supreme Court to set for oral argument
the motion for reconsideration filed by the representatives of Congress to the Judicial and
Bar Council (JBC) in the case of Francisco Chavez v. Judicial and Bar Council, Sen. Francis
Joseph G.. Escudero and Rep. Niel Tupas Jr., G.R. No. 2022242 considering the primordial
importance of the constitutional issues involved;" id. at 308-310.

6 Entitled "Resolution authorizing Senator Joker P. Arroyo to argue, together with the
Counsel-of-record, the motion for reconsideration filed by the representative of the Senate to
the Judicial and Bar Council in the case of Francisco Chavez v. Judicial and Bar Council,
Sen. Francis Joseph G. Escudero and Rep. Niel Tupas, Jr.;" id. at 311-312.

7 Id. at 313-314.

8
Id. at (318-I)-(318-K).

9 Id. at 318-J.

10 Petitioner’s Memorandum, id. at 326-380; Respondents’ Memorandum, id. at 381-424.

11Malolos Constitution Article 80 Title X. – The Chief Justice of the Supreme Court and the
Solicitor-General shall be chosen by the National Assembly in concurrence with the
President of the Republic and the Secretaries of the Government, and shall be absolutely
independent of the Legislative and Executive Powers."

121935 Constitution Article VIII, Section 5. – The Members of the Supreme Court and all
judges of inferior courts shall be appointed by the President with the consent of the
Commission on Appointments."

13 1 Records of the Constitutional Commission Proceedings and Debates, 437.

14Section 4 Article X of the 1973 Constitution provides: "The Members of the Supreme Court
and judges of inferior courts shall be appointed by the President."

15 1 Records, Constitutional Commission, Proceedings and Debates, p. 487.

16List of JBC Chairpersons, Ex-Officio and Regular Members, Ex Officio Secretaries and
Consultants, issued by the Office of the Executive Officer, Judicial and Bar Council, rollo, pp.
62-63.

17 Id.

Id. at 80, citing Minutes of the 1st En Banc Executive Meeting, January 12, 2000 and
18

Minutes of the 12th En Banc Meeting, May 30, 2001.

19 Malcolm, The Constitutional Law of the Philippine Islands (2nd ed. 1926), p. 26.

201987 Constitution, Article VII, Section 4. – The President and the Vice-President shall be
elected by direct vote of the people for a term of six years which shall begin at noon on the
thirtieth day of June next following the day of the election and shall end at noon of the same
date, six years thereafter. The President shall not be eligible for any re-election. No person
who has succeeded as President and has served as such for more than four years shall be
qualified for election to the same office at any time.

xxx

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. (Emphasis supplied)

x x x.

211987 Constitution, Article VII, Section 9. – Whenever there is a vacancy in the Office of the
Vice-President during the term for which he was elected, the President shall nominate a
Vice-President from among the Members of the Senate and the House of Representatives
who shall assume office upon confirmation by a majority vote of all the Members of both
Houses of the Congress, voting separately. (Emphasis supplied)

221987 Constitution, Article VII, Section 18. – The President shall be the Commander-in-
Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the President. Upon
the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it. (Emphasis supplied)
23 1987 Constitution, Article VI Section 27(1). – Every bill passed by the Congress shall,
before it becomes a law, be presented to the President. If he approves the same, he shall
sign it; otherwise, he shall veto it and return the same with his objections to the House where
it originated, which shall enter the objections at large in its Journal and proceed to reconsider
it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to
pass the bill, it shall be sent, together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it
shall become a law. In all such cases, the votes of each House shall be determined by yeas
or nays, and the names of the Members voting for or against shall be entered in its Journal.
The President shall communicate his veto of any bill to the House where it originated within
thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had
signed it.

241987 Constitution, Article VI Section 24. – All appropriation, revenue or tariff bills, bills
authorizing increase of public debt, bills of local application, and private bills shall originate
exclusively in the House of Representatives, but the Senate may propose or concur with
amendments.

251987 Constitution, Article VI Section 23 (1). – The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.

26 1987 Constitution, Article VII Section 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 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.

27
1987 Constitution, Article XI Section 3 (1). – The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.

xxx

(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate.

28 Dated March 27, 2007; Annex "D," rollo, p. 104.

29Annex C, id. at 95. Quoting the interpretation of Article VIII, Section (1) of the Constitution
by Fr. Joaquin Bernas in page 984 of his book, The 1987 Constitution of the Republic of the
Philippines, A Commentary. He quoted another author, Hector de Leon, and portions of the
 decisions of this Court in Flores v. Drilon, and Escalante v. Santos, before extensively
quoting the Record of the Constitutional Commission of 1986 (pages 444 to 491).

30 Annex "E," id. at 1205.

31 Rollo, pp. 91-93.

32 G.R. No. 166006, March 14, 2008, 548 SCRA 485.

33 Id. at 516-517. (Citations omitted.)

34 Black’s Law Dictionary, Fifth ed., p. 198.

35 Agpalo, Statutory Construction, 2009 ed., p. 231.

36 Id., citing Cartwrite v. Cartwrite, 40 A2d 30, 155 ALR 1088 (1944).

37 Id., Agpalo, p. 232

38Dissenting Opinion, Chief Justice Panganiban, Central Bank (Now Bangko Sentral Ng
Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208,
December 15, 2004, 446 SCRA 299, citing Peralta v. COMELEC. No. L-47771, March 11,
1978, 82 SCRA 30, 77, citing concurring and dissenting opinion of former Chief Justice
Fernando, citing Malcolm.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

ABAD, J.:

On July 17, 2012, the Court rendered a Decision1 granting the petition for declaration of
unconstitutionality, prohibition, and injunction filed by petitioner Francisco I. Chavez, and declaring
that the current numerical composition of the Judicial and Bar Council (JBC) is unconstitutional. The
Court also enjoined the JBC to reconstitute itself so that only one member of Congress will sit as a
representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987
Constitution.

On July 24, 2012, respondents Senator Francis Joseph G. Escudero and Congressman Niel C.
Tupas, Jr. moved for reconsideration.2 The Court then conducted and heard the parties in oral
arguments on the following Issues:

1. Whether or not the current practice of the JBC to perform its functions with eight members, two of
whom are members of Congress, runs counter to the letter and spirit of Section 8(1), Article VIII of
the 1987 Constitution.
A. Whether or not the JBC should be composed of seven members only.

B. Whether or not Congress is entitled to more than one seat in the JBC.

C. Assuming Congress is entitled to more than one seat, whether or not each representative of
Congress should be entitled to exercise one whole vote.

I maintain my dissent to the majority opinion now being reconsidered.

To reiterate, the vital question that needs to be resolved is: whether or not the Senate and the House
of Representatives are entitled to one representative each in the JBC, both with the right to cast one
full vote in its deliberations.

At the core of the present controversy is Section 8(1), Article VIII of the 1987 Constitution, which
provides that:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
(Emphasis supplied)

In interpreting Section 8(1) above, the majority opinion reiterated that in opting to use the singular
letter "a" to describe "representative of the Congress," the Filipino people through the framers of the
1987 Constitution intended Congress to just have one representative in the JBC. The majority
opinion added that there could not have been any plain oversight in the wordings of the provision
since the other provisions of the 1987 Constitution were amended accordingly with the shift to a
bicameral legislative body.

The mere fact, however, that adjustments were made in some provisions should not mislead the
Court into concluding that all provisions have been amended to recognize the bicameral nature of
Congress. As I have previously noted in my dissenting opinion, Fr. Joaquin G. Bernas, a member of
the Constitutional Commission himself, admitted that the committee charged with making
adjustments in the previously passed provisions covering the JBC, failed to consider the impact of
the changed character of the Legislature on the inclusion of "a representative of the Congress" in the
membership of the JBC.3

Indeed, to insist that only one member of Congress from either the Senate or the House of
Representatives should sit at any time in the JBC, is to ignore the fact that they are still separate and
distinct from each other although they are both involved in law-making. Both legislators are elected
differently, maintain separate administrative organizations, and deliberate on laws independently. In
fact, neither the Senate nor the House of Representatives can by itself claim to represent the
Congress.

Again, that the framers of the 1987 Constitution did not intend to limit the term "Congress" to just
either of the two Houses can be seen from the words that they used in crafting Section 8(1 ). While
the provision provides for just "a representative of the Congress," it also provides that such
representation is "ex officio" or "by virtue of one's office, or position."4

Under the Senate rules, the Chairperson of its Justice Committee is automatically the Senate
representative to the JBC. In the same way, under the House of Representatives rules, the
Chairperson of its Justice Committee is the House representative to the JBC. Consequently, there
are actually two persons in Congress who hold separate offices or positions with the attached
function of sitting in the JBC. If the Court adheres to a literal translation of Section 8(1 ), no
representative from Congress will qualify as "ex officio" member of the JBC. This would deny
Congress the representation that the framers of the 1987 Constitution intended it to have.

Having said that the Senate and the House of Representatives should have one representative each
in the JBC, it is logical to conclude that each should also have the right to cast one full vote in its
deliberations. To split the vote between the two legislators would be an absurdity since it would
diminish their standing and make them second class members of the JBC, something that the
Constitution clearly does not contemplate. Indeed, the JBC abandoned the half-a-vote practice on
January 12, 2000 and recognized the right of both legislators to cast one full vote each. Only by
recognizing this right can the true spirit and reason of Section 8(1) be attained.

For the above reasons, I vote to GRANT the motion for reconsideration.

ROBERTO A. ABAD
Associate Justice

Footnotes

1 Rollo, pp. 226-250.

2 Id. at 257-284.

3 http://opinion.inquirer.net/31813/jbc-odds-and-ends (last accessed February 15, 2013).

4 Webster's New World College Dictionary, 3rd Edition, p. 477.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

LEONEN, J.:

I dissent.

Both the Senate and the House of Representatives must be represented in the Judicial and Bar
Council. This is the Constitution's mandate read as a whole and in the light of the ordinary and
contemporary understanding of our people of the structure of our government. Any other
interpretation diminishes Congress and negates the effectivity of its representation in the Judicial
and Bar Council.
It is a Constitution we are interpreting. More than privileging a textual preposition, our duty is to
ensure that the constitutional project ratified by our people is given full effect.

At issue in this case is the interpretation of Article VIII, Section 8 of the Constitution which provides
the following:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of

Justice, and a representative of the Congress as ex officio Members, a representative of the

Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of
the private sector. (Emphasis provided)

Mainly deploying verba legis as its interpretative modality, the main opinion chooses to focus on the
article "a." As correctly pointed out in the original dissent of Justice Robert A bad, the entire phrase
includes the words "representative of Congress" and "ex officio Members." In the context of the
constitutional plan involving a bicameral Congress, these words create ambiguity.

A Bicameral Congress

Our Constitution creates a Congress consisting of two chambers. Thus, in Article VI, Section 1, the
Constitution provides the following:

The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives x x x. (Emphasis provided)

Senators are "elected at large by the qualified voters of the Philippines".1 Members of the House of
Representatives, on the other hand, are elected by legislative districts2 or through the party list
system.3 The term of a Senator4 is different from that of a Member of the House of
Representatives.5 Therefore, the Senate and the House of Representatives while component parts
of the Congress are not the same in terms of their representation. The very rationale of a bicameral
system is to have the Senators represent a national constituency. Representatives of the House of
Representatives, on the other hand, are dominantly from legislative districts except for one fifth
which are from the party list system.

Each chamber is organized separately.6 The Senate and the House each promulgates their own
rules of procedure.7 Each chamber maintains separate Journals.8 They each have separate Records
of their proceedings.9The Senate and the House of Representatives discipline their own respective
members.10

To belabor the point: There is no presiding officer for the Congress of the Philippines, but there is a
Senate President and a Speaker of the House of Representatives. There is no single journal for the
Congress of the Philippines, but there is a journal for the Senate and a journal for the House of
Representatives. There is no record of proceedings for the entire Congress of the Philippines, but
there is a Record of proceedings for the Senate and a Record of proceedings for the House of
Representatives. The Congress of the Philippines does not discipline its members. It is the Senate
that promulgates its own rules and disciplines its members. Likewise, it is the House that
promulgates its own rules and disciplines its members.
No Senator reports to the Congress of the Philippines. Rather, he or she reports to the Senate. No
Member of the House of Representatives reports to the Congress of the Philippines. Rather, he or
she reports to the House of Representatives.

Congress, therefore, is the Senate and the House of Representatives. Congress does not exist
separate from the Senate and the House of Representatives.

Any Senator acting ex officio or as a representative of the Senate must get directions from the
Senate. By constitutional design, he or she cannot get instructions from the House of
Representatives. If a Senator represents the Congress rather than simply the Senate, then he or she
must be open to amend or modify the instructions given to him or her by the Senate if the House of
Representatives’ instructions are different. Yet, the Constitution vests disciplinary power only on the
Senate for any Senator.

The same argument applies to a Member of the House of Representatives.

No Senator may carry instructions from the House of Representatives. No Member of the House of
Representatives may carry instructions from the Senate. Neither Senator nor Member of the House
of Representatives may therefore represent Congress as a whole.

The difference between the Senate and the House of Representative was a subject of discussion in
the Constitutional Commission. In the July 21, 1986 Records of the Constitutional Commission,
Commissioner Jose F. S. Bengzon presented the following argument during the discussion on
bicameralism, on the distinction between Congressmen and Senators, and the role of the Filipino
people in making these officials accountable:

I grant the proposition that the Members of the House of Representatives are closer to the people
that they represent. I grant the proposition that the Members of the House of Representatives
campaign on a one-to-one basis with the people in the barrios and their constituencies. I also grant
the proposition that the candidates for Senator do not have as much time to mingle around with their
constituencies in their respective home bases as the candidates for the House. I also grant the
proposition that the candidates for the Senate go around the country in their efforts to win the votes
of all the members of the electorate at a lesser time than that given to the candidates for the House
of Representatives. But then the lesson of the last 14 years has made us mature in our political
thinking and has given us political will and self-determination. We really cannot disassociate the fact
that the Congressman, the Member of the House of Representatives, no matter how national he
would like to think, is very much strongly drawn into the problems of his local constituents in his own
district.

Due to the maturity of the Filipinos for the last 14 years and because of the emergence of people
power, I believe that this so-called people power can be used to monitor not only the Members of the
House of Representatives but also the Members of the Senate. As I said we may have probably
adopted the American formula in the beginning but over these years, I think we have developed that
kind of a system and adopted it to our own needs. So at this point in time, with people power
working, it is not only the Members of the House who can be subjected to people power but also the
Members of the Senate because they can also be picketed and criticized through written articles and
talk shows. And even the people not only from their constituencies in their respective regions and
districts but from the whole country can exercise people power against the Members of the Senate
because they are supposed to represent the entire country. So while the Members of Congress
become unconsciously parochial in their desire to help their constituencies, the Members of the
Senate are there to take a look at all of these parochial proposals and coordinate them with the
national problems. They may be detached in that sense but they are not detached from the people
because they themselves know and realize that they owe their position not only to the people from
their respective provinces but also to the people from the whole country. So, I say that people power
now will be able to monitor the activities of the Members of the House of Representatives and that
very same people power can be also used to monitor the activities of the Members of the Senate.11

Commissioner Bengzon provided an illustration of the fundamental distinction between the House of
Representatives and the Senate, particularly regarding their respective constituencies and
electorate. These differences, however, only illustrate that the work of the Senate and the House of
Representatives taken together results in a Congress functioning as one branch of government.
Article VI, Section 1, as approved by the Commission, spoke of one Congress whose powers are
vested in both the House of Representatives and the Senate.

Thus, when the Constitution provides that a "representative of Congress" should participate in the
Judicial and Bar Council, it cannot mean a Senator carrying out the instructions of the House or a
Member of the House of Representative carrying out instructions from the Senate. It is not the kind
of a single Congress contemplated by our Constitution. The opinion therefore that a Senator or a
Member of the House of Representative may represent the Congress as a whole is contrary to the
intent of the Constitution. It is unworkable.

One mechanism used in the past to work out the consequence of the majority’s opinion is to allow a
Senator and a Member of the House of Representative to sit in the Judicial and Bar Council but to
each allow them only half a vote.

Within the Judicial and Bar Council, the Chief Justice is entitled to one vote. The Secretary of Justice
is also entitled to one whole vote and so are the Integrated Bar of the Philippines, the private sector,
legal academia, and retired justices. Each of these sectors are given equal importance and
rewarded with one whole vote. However, in this view, the Senate is only worth fifty percent of the
wisdom of these sectors. Likewise, the wisdom of the House of Representatives is only worth fifty
percent of these institutions.

This is constitutionally abominable. It is inconceivable that our people, in ratifying the Constitution
granting awesome powers to Congress, intended to diminish its component parts. After all, they are
institutions composed of people who have submitted themselves to the electorate. In creating
shortlists of possible candidates to the judiciary, we can safely suppose that their input is not less
than the input of the professor of law or the member of the Integrated Bar of the Philippines or the
member from the private sector.

The other solution done in the past was to alternate the seat between a Senator and a Member of
the House of Representatives.

To alternate the seat given to Congress between the Senate and the House of Representatives
would mean not giving a seat to the Congress at all. Again, when a Senator is seated, he or she
represents the Senate and not Congress as a whole. When a Member of the House of
Representative is seated, he or she can only represent Congress as a whole. Thus, alternating the
seat not only diminishes congressional representation; it negates it.

Constitutional Interpretation

The argument that swayed the majority in this case’s original decision was that if those who crafted
our Constitution intended that there be two representatives from Congress, it would not have used
the preposition "a" in Article VIII, Section 8 (1). However, beyond the number of representatives, the
Constitution intends that in the Judicial and Bar Council, there will be representation from Congress
and that it will be "ex officio", i.e., by virtue of their positions or offices. We note that the provision did
not provide for a number of members to the Judicial and Bar Council. This is unlike the provisions
creating many other bodies in the Constitution.12

In other words, we could privilege or start our interpretation only from the preposition "a" and from
there provide a meaning that ensures a difficult and unworkable result -- one which undermines the
concept of a bicameral congress implied in all the other 114 other places in the Constitution that
uses the word "Congress".

Or, we could give the provision a reasonable interpretation that is within the expectations of the
people who ratified the Constitution by also seeing and reading the words "representative of
Congress" and "ex officio."

This proposed interpretation does not violate the basic tenet regarding the authoritativeness of the
text of the Constitution. It does not detract from the text. It follows the canonical requirement of verba
legis. But in doing so, we encounter an ambiguity.

In Macalintal v. Presidential Electoral Tribunal,13 we said:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to
obtain that it should ever be present in the people’s consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say. Thus these are
cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding the
framing of the Constitution. In following this guideline, courts should bear in mind the object sought
to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied. Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus
in the landmark case of Civil Liberties Union v. Executive Secretary:

It is a well-established rule in constitutional construction that no one provision of the Constitution is

to be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory. (Emphasis provided)

And in Civil Liberties Union v. Executive Secretary,13 we said:

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.

The authoritativeness of text is no excuse to provide an unworkable result or one which undermines
the intended structure of government provided in the Constitution. Text is authoritative, but it is not
exhaustive of the entire universe of meaning.

There is no compelling reason why we should blind ourselves as to the meaning of "representative
of Congress" and "ex officio." There is no compelling reason why there should only be one
representative of a bicameral Congress.

Proposed Reasons for Only One Representative of Congress

The first reason to support the need for only one representative of Congress is the belief that there
needs to be an odd number in the Judicial and Bar Council.

This is true only if the decision of the constitutional organ in question is a dichotomous one, i.e., a
yes or a no. It is in this sense that a tie-breaker will be necessary.

However, the Judicial and Bar Council is not that sort of a constitutional organ. Its duty is to provide
the President with a shortlist of candidates to every judicial position. We take judicial notice that for
vacancies, each member of the Judicial and Bar Council is asked to list at least three (3) names. All
these votes are tallied and those who garner a specific plurality are thus put on the list and
transmitted to the President. There had been no occasion when the Judicial and Bar Council ever
needed to break a tie. The Judicial and Bar Council’s functions proceed regardless of whether they
have seven or eight members.

The second reason that the main opinion accepted as persuasive was the opinion that Congress
does not discharge its function to check and balance the power of both the Judiciary and the
Executive in the Judicial and Bar Council. From this premise, it then proceeds to argue that the
Representative of Congress, who is ex officio, does not need to consult with Congress as a whole.

This is very perplexing and difficult to accept.

By virtue of the fundamental premise of separation of powers, the appointing power in the judiciary
should be done by the Supreme Court. However, for judicial positions, this is vested in the
Executive. Furthermore, because of the importance of these appointments, the President’s
discretion is limited to a shortlist submitted to him by the Judicial and Bar Council which is under the
supervision of the Supreme Court but composed of several components.

The Judicial and Bar Council represents the constituents affected by judicial appointments and by
extension, judicial decisions. It provides for those who have some function vis a vis the law that
should be applied and interpreted by our courts. Hence, represented are practicing lawyers
(Integrated Bar of the Philippines), prosecutors (Secretary of the Department of Justice), legal
academia (professor of law), and judges or justices (retired justice and the Chief Justice). Also
represented in some way are those that will be affected by the interpretation directly (private sector
representative).

Congress is represented for many reasons.

One, it crafts statutes and to that extent may want to ensure that those who are appointed to the
judiciary are familiar with these statutes and will have the competence, integrity, and independence
to read its meaning.

Two, the power of judicial review vests our courts with the ability to nullify their acts. Congress,
therefore, has an interest in the judicial philosophy of those considered for appointment into our
judiciary.

Three, Congress is a political organ. As such, it is familiar with the biases of our political leaders
including that of the President. Thus, it will have greater sensitivity to the necessity for political
accommodations if there be any. Keeping in mind the independence required of our judges and
justices, the Members of Congress may be able to appreciate the kind of balance that will be
necessary -- the same balance that the President might be able to likewise appreciate -- when
putting a person in the shortlist of judicial candidates. Not only do they appreciate this balance, they
embody it. Senators and Members of the House of Representatives (unlike any of the other
members of the Judicial and Bar Council), periodically submit themselves to the electorate.

It is for these reasons that the Congressional representatives in the Judicial and Bar Council may be
instructed by their respective chambers to consider some principles and directions. Through
resolutions or actions by the Congressional Committees they represent, the JBC Congressional
representatives’ choices may be constrained. Therefore, they do not sit there just to represent
themselves. Again, they are "representatives of Congress" "ex officio".

The third reason to support only one representative of Congress is the belief that there is the
"unmistakable tenor" in the provision in question that one co-equal branch should be represented
only by one Representative.14 It may be true that the Secretary of Justice is the political alter ego of
the President or the Executive. However, Congress as a whole does not have a political alter ego. In
other words, while the Executive may be represented by a single individual, Congress cannot be
represented by an individual. Congress, as stated earlier, operates through the Senate and the
House of Representatives. Unlike the Executive, the Legislative branch cannot be represented by
only one individual.

A Note on the Work of the Constitutional Commission

Time and again, we have clarified the interpretative value to Us of the deliberations of the
Constitutional Commission. Thus in Civil Liberties Union v. Executive Secretary, we emphasized:

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto
may be had only when other guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention ‘are of value as
showing the views of the individual members, and as indicating the reason for their votes, but they
give Us no light as to the views of the large majority who did not talk, much less of the mass or our
fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its face.’The proper interpretation
therefore depends more on how it was understood by the people adopting it than in the
framers’ understanding thereof.15 (Emphasis provided)
Also worth Our recall is the celebrated comment of Charles P. Curtis, Jr. on the role of history in
constitutional exegesis:16

The intention of the framers of the Constitution, even assuming we could discover what it was, when
it is not adequately expressed in the Constitution, that is to say, what they meant when they did not
say it, surely that has no binding force upon us. If we look behind or beyond what they set down
in the document, prying into what else they wrote and what they said, anything we may find is
only advisory. They may sit in at our councils. There is no reason why we should eavesdrop
on theirs.17 (Emphasis provided)

In addition to the interpretative value of the discussion in the Constitutional Commission, we should
always be careful when we quote from their records without understanding their context.

The Committees of the Constitutional Commission were all tasked to finish their reports not later
than July 7, 1986.18 The Second and Third Readings were scheduled to finish not later than August
15, 1986.19 The members of the Sponsorship and Style Committee were tasked to finish their work of
formulating and polishing the style of the final draft of the new Constitution scheduled for submission
to the entire membership of the Commission not later than August 25, 1986.20

The Rules of the Constitutional Commission also provided for a process of approving resolutions
and amendments.

Constitutional proposals were embodied in resolutions signed by the author.21 If they emanated from
a committee, the resolution was signed by its chairman.22 Resolutions were filed with the Secretary-
General.23 The First Reading took place when the titles of the resolutions were read and referred to
the appropriate committee.24

The Committees then submitted a Report on each resolution.25 The Steering Committee took charge
of including the committee report in the Calendar for Second Reading.26 The Second Reading took
place on the day set for the consideration of a resolution.27 The provisions were read in full with the
amendments proposed by the committee, if there were any.28

A motion to close debate took place after three speeches for and two against, or if only one speech
has been raised and none against it.29 The President of the Constitutional Commission had the
prerogative to allow debates among those who had indicated that they intended to be heard on
certain matters.30 After the close of the debate, the Constitutional Commission proceeded to consider
the Committee amendments.31

After a resolution was approved on Second Reading, it was included in the Calendar for Third
Reading.32 Neither further debate nor amendment shall be made on the resolution on its Third
Reading.33 All constitutional proposals approved by the Commission after Third Reading were
referred to the Committees on Sponsorship and Style for collation, organization, and consolidation
into a complete and final draft of the Constitution.34 The final draft was submitted to the Commission
for the sole purpose of determining whether it reflects faithfully and accurately the proposals as
approved on Second Reading.35

With respect to the provision which is now Article VIII, Section 8 (1), the timetable was as follows:

On July 10, 1986, the Committee on the Judiciary presented its Report to the
Commission.36 Deliberations then took place on the same day; on July 11, 1986; and on July 14,
1986. It was on July 10 that Commissioner Rodrigo raised points regarding the Judicial and Bar
Council.37 The discussion spoke of the Judicial and Bar Council having seven members.
Numerous mentions of the Judicial and Bar Council being comprised of seven members were also
made by Commissioners on July 14, 1986. On the same day, the amended article was approved by
unanimous voting.38

On July 19, 1986, the vote on Third Reading on the Article on the Judiciary took place.39 The vote
was 43 and none against.40

Committee Report No. 22 proposing an article on a National Assembly was reported out by July 21,
1986.41 It provided for a unicameral assembly. Commissioner Hilario Davide, Jr., made the
presentation and stated that they had a very difficult decision to make regarding bicameralism and
unicameralism.42 The debate occupied the Commission for the whole day.

Then, a vote on the structure of Congress took place.43 Forty four (44) commissioners cast their
votes during the roll call.44 The vote was 23 to 22.45

On October 8, 1986, the Article on the Judiciary was reopened for purposes of introducing
amendments to the proposed Sections 3, 7, 10, 11, 13, and 14.46

On October 9, 1986, the entire Article on the Legislature was approved on Third Reading.47

By October 10, 1986, changes in style on the Article on the Legislature were introduced.48

On October 15, 1986, Commissioner Guingona presented the 1986 Constitution to the President of
the Constitutional Commission, Cecilia Munoz-Palma.49

It is apparent that the Constitutional Commission either through the Style and Sponsorship
Committee or the Committees on the Legislature and the Judiciary was not able to amend the
provision concerning the Judicial and Bar Council after the Commission had decided to propose a
bicameral Congress. We can take judicial notice of the chronology of events during the deliberations
of the Constitutional Commission. The chronology should be taken as much as the substance of
discussions exchanged between the Commissioners.

The quotations from the Commissioners mentioned in the main opinion and in the proposed
resolution of the present Motion for Reconsideration should thus be appreciated in its proper context.

The interpellation involving Commissioners Rodrigo and Concepcion took place on July 10, 1986
and on July 14, 1986.50 These discussions were about Committee Report No. 18 on the Judiciary.
Thus:

MR. RODRIGO: Let me go to another point then.

On page 2, Section 5, there is a novel provision about appointments of members of the Supreme
Court and of judges of lower courts. At present it is the President who appoints them. If there is a
Commission on Appointments, then it is the President with the confirmation of the Commission on
Appointments. In this proposal, we would like to establish a new office, a sort of a board composed
of seven members, called the Judicial and Bar Council. And while the President will still appoint the
members of the judiciary, he will be limited to the recommendees of this Council.

xxxx
MR. RODRIGO: Of the seven members of the Judicial and Bar Council, the President appoints four
of them who are the regular members.

xxxx

MR. CONCEPCION: The only purpose of the Committee is to eliminate partisan politics.51

xxxx

It must also be noted that during the same day and in the same discussion, both Commissioners
Rodrigo and Concepcion later on referred to a ‘National Assembly’ and not a ‘Congress,’ as can be
seen here:

MR. RODRIGO: Another point. Under our present Constitution, the National Assembly may enact
rules of court, is that right? On page 4, the proviso on lines 17 to 19 of the Article on the Judiciary
provides:

The National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court.

MR. CONCEPCION: Yes.

MR. RODRIGO: So, two things are required of the National Assembly before it can repeal, alter or
supplement the rules concerning the protection and enforcement of constitutional rights, pleading,
etc. — it must have the advice and concurrence of the Supreme Court.

MR. CONCEPCION: That is correct.52

On July 14, 1986, the Commission proceeded with the Period of Amendments. This was when the
exchange noted in the main opinion took place. Thus:

MR. RODRIGO: If my amendment is approved, then the provision will be exactly the same as the
provision in the 1935 Constitution, Article VIII, Section 5.

xxxx

If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this
will be a diminution of the appointing power of the highest magistrate of the land, of the President of
the Philippines elected by all the Filipino people. The appointing power will be limited by a group of
seven people who are not elected by the people but only appointed.

Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional
provisions on appointments. The members of the Judiciary will be segregated from the rest of the
government. Even a municipal judge cannot be appointed by the President except upon
recommendation or nomination of three names by this committee of seven people, commissioners of
the Commission on Elections, the COA and Commission on Civil Service x x x even ambassadors,
generals of the Army will not come under this restriction. Why are we going to segregate the
Judiciary from the rest of our government in the appointment of the high-ranking officials?

Another reason is that this Council will be ineffective. It will just besmirch the honor of our President
without being effective at all because this Council will be under the influence of the President. Four
out of seven are appointees of the President, and they can be reappointed when their term ends.
Therefore, they would kowtow to the President. A fifth member is the Minister of Justice, an alter ego
of the President. Another member represents the legislature. In all probability, the controlling party in
the legislature belongs to the President and, therefore, this representative from the National
Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that
even the Chief Justice of the Supreme Court is an appointee of the President. So, it is futile; he will
be influenced anyway by the President.53

It must again be noted that during this day and period of amendments after the quoted passage in
the Decision, the Commission later on made use of the term ‘National Assembly’ and not ‘Congress’
again:

MR. MAAMBONG: Presiding Officer and members of the Committee, I propose to delete the last
sentence on Section 16, lines 28 to 30 which reads: "The Chief Justice shall address the National
Assembly at the opening of each regular session."

May I explain that I have gone over the operations of other deliberative assemblies in some parts of
the world, and I noticed that it is only the Chief Executive or head of state who addresses the
National Assembly at its opening. When we say "opening," we are referring to the first convening of
any national assembly. Hence, when the Chief Executive or head of state addresses the National
Assembly on that occasion, no other speaker is allowed to address the body.

So I move for the deletion of this last sentence.54

Based on the chronology of events, the discussions cited by the main ponencia took place when the
commissioners were still contemplating a unicameral legislature in the course of this discussion.
Necessarily, only one Representative would be needed to fully effect the participation of a
unicameral legislature. Therefore, any mention of the composition of the JBC having seven
members in the records of the Constitutional Commission, particularly during the dates cited, was
obviously within the context that the Commission had not yet voted and agreed upon a bicameral
legislature.

The composition of the Congress as a bilateral legislature became final only after the JBC
discussions as a seven-member Council indicated in the Records of the Constitutional Commission
took place. This puts into the proper context the recognition by Commissioner Christian Monsod on
July 30, 1986, which runs as follows:

Last week, we voted for a bicameral legislature. Perhaps it is symptomatic of what the thinking of
this group is, that all the provisions that were being drafted up to that time assumed a unicameral
government.55

The repeated mentions of the JBC having seven members as indicated in the Records of the
Constitutional Commission do not justify the points raised by petitioner. This is a situation where the
records of the Constitutional Commission do not serve even as persuasive means to ascertain intent
at least in so far as the intended numbers for the Judicial and Bar Council. Certainly they are not
relevant even to advise us on how Congress is to be represented in that constitutional organ.

We should never forget that when we interpret the Constitution, we do so with full appreciation of
every part of the text within an entire document understood by the people as they ratified it and with
all its contemporary consequences. As an eminent author in constitutional theory has observed while
going through the various interpretative modes presented in jurisprudence: "x x x all of the
methodologies that will be discussed, properly understood, figure in constitutional analysis as
opportunities: as starting points, constituent parts of complex arguments, or concluding
evocations." 56

Discerning that there should be a Senator and a Member of the House of Representatives that sit in
the Judicial and Bar Council so that Congress can be fully represented ex officio is not judicial
activism. It is in keeping with the constitutional project of a bicameral Congress that is effective
whenever and wherever it is represented. It is in tune with how our people understand Congress as
described in the fundamental law. It is consistent with our duty to read the authoritative text of the
Constitution so that ordinary people who seek to understand this most basic law through Our
decisions would understand that beyond a single isolated text -- even beyond a prepos1t10n in
Article VIII, Section 8 (1 ), our primordial values and principles are framed, congealed and will be
given full effect.

In a sense, we do not just read words in a legal document; we give meaning to a Constitution.

For these reasons, I vote to grant the Motion for Reconsideration and deny the Petition for lack of
merit.

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

Footnotes

1 CONSTITUTION, Art. VI, Sec. 2.

2 CONSTITUTION, Art. VI, Sec. 5 (1).

3 CONSTITUTION, Art. VI, Sec. 5 (2). See also the recent case of Atong Paglaum v.
COMELEC et al., G.R. No. 203766, for the most recent discussion on the nature of the party
list system.

4
The term of a senator is six years, extendible for another term. CONSTITUTION, Art. VI,
Sec. 4.

5The term of a member of the House of Representatives is three years, and may be
extendible for three consecutive terms. CONSTITUTION, Art. VI, Sec. 7.

6 CONSTITUTION, Art. VI, Sec. 16.

7 CONSTITUTION, Art. VI, Sec. 16 (1).

8 CONSTITUTION, Art. VI, Sec. 16 (4), par. (1).

9 CONSTITUTION, Art. VI, Sec. 16 (4), par. (2).

10 CONSTITUTION, Art. VI, Sec. 16 (3).

11 II RECORD, CONSTITUTIONAL COMMISSION 63 (July 21, 1986).

12CONSTITUTION, Art. VI, Sec. 2: The Senate shall be composed of twenty-four Senators
who shall be elected at large by the qualified voters of the Philippines, as may be provided
by law.;

Art. VI, Sec. 5: The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law...;

Art. VI, Sec. 17: The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. Each Electoral Tribunal shall
be composed of nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining six shall be Members
of the Senate or the House of Representatives, as the case may be…;

Art. VI, Sec. 18: There shall be a Commission on Appointments consisting of the
President of the Senate, as ex officio Chairman, twelve Senators, and twelve
Members of the House of Representatives, elected by each House on the basis of
proportional representation from the political parties and parties or organizations
registered under the party-list system represented therein.;

Art. VIII, Sec. 4.1: The Supreme Court shall be composed of a Chief Justice and
fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three, five, or
seven Members...;

Art. IX (B), Sec. 1: The civil service shall be administered by the Civil Service
Commission composed of a Chairman and two Commissioners...;

Art. IX (C), Sec. 1: There shall be a Commission on Elections composed of a

Chairman and six Commissioners...;

Art. IX (D), Sec. 1: There shall be a Commission on Audit composed of a Chairman

and two Commissioners...;

Art. XI, Sec. 11: There is hereby created the independent Office of the Ombudsman,
composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and
at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed.;

Art. XII, Sec. 17 (2): The Commission [on Human Rights] shall be composed of a
Chairman and four Members who must be natural-born citizens of the Philippines
and a majority of whom shall be members of the Bar.

13Atty. Romulo A. Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, November
23, 2010, 635 SCRA 783, 797-799.

Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1981, 194
13

SCRA 317, 325.

 Francisco I. Chavez v. Judicial and Bar Council, Sen. Francis Joseph G. Escudero and
14

Rep. Neil C. Tupas, Jr., G.R. No. 202242, July 17, 2012, p. 18.

15 Civil Liberties Union v. Executive Secretary, supra at 337.

16 Charles P. Curtis. LIONS UNDER THE THRONE 2, Houghton Mifflin, 1947.

17Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 412 Phil. 308, 363
(2001).

I RECORD, CONSTITUTIONAL COMMISSION Appendix 2, p. 1900, (July 10, 1986),

18

PROPOSED RESOLUTION NO. 50, RESOLUTION PROVIDING FOR THE RULES OF THE
CONSTITUTIONAL COMMISSION (PROPOSED RESOLUTION NO. 50), Rule II, Sec. 9.

19 Proposed Resolution No. 50, Rule II, Sec. 9.

20 Proposed Resolution No. 50, Rule II, Sec. 9.

21 Proposed Resolution No. 50, Rule IV, Sec. 20.

22 Proposed Resolution No. 50, Rule IV, Sec. 20.

23 Proposed Resolution No. 50, Rule IV, Sec. 20.

24 Proposed Resolution No. 50, Rule IV, Sec. 21.

25 Proposed Resolution No. 50, Rule IV, Sec. 22.

26 Proposed Resolution No. 50, Rule IV, Sec. 22.

27 Proposed Resolution No. 50, Rule IV, Sec. 23.

28 Proposed Resolution No. 50, Rule IV, Sec. 23.

29 Proposed Resolution No. 50, Rule IV, Sec. 24.

30 Proposed Resolution No. 50, Rule IV, Sec. 25.

31 Proposed Resolution No. 50, Rule IV, Sec. 26.

32 Proposed Resolution No. 50, Rule IV, Sec. 27.

33 Proposed Resolution No. 50, Rule IV, Sec. 27.

34 Proposed Resolution No. 50, Rule IV, Sec. 29.

35 Proposed Resolution No. 50, Rule IV, Sec. 29.

36I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 27 (Thursday, July 10,

1986).
37I RECORD, CONSTITUTIONAL COMMISSION, RECORD NO. 27 (Thursday, July 10,
1986).

38I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 27 (Thursday, July 10,

1986).

39I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,

1986).

40I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,

1986).

41I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,

1986), which reads:

RECONSIDERATION AND APPROVAL, ON THIRD READING, OF THE ARTICLE

ON THE JUDICIARY. On motion of Mr. Bengzon, there being no objection, the Body
reconsidered the approval, on Third Reading, of the Article on the Judiciary, to afford
the other Members opportunity to cast their votes. Thereupon, upon direction of the
Chair, the Secretary-General called the Roll for nominal voting and the following
Members cast an affirmative vote:

Abubakar

Alonto

Azcuna

Natividad

Tadeo

With 5 additional affirmative votes, making a total of 43 Members voting in favor and
none against, the Chair declared the Article on the Judiciary approved on Third
Reading.

42I RECORD, CONSTITUTIONAL COMMISSION, NO. 35 (Monday, July 21, 1986), which
reads in part:

MR. DAVIDE:

xxx

A Unicameral Structure of the National Assembly. — In the records of the 1935 and
1971 Constitutional Conventions, and now the 1986 Constitutional Commission,
advocates of unicameralism and bicameralism have eloquently discoursed on the
matter. The draft proposal of the 1986 UP Law Constitution Project analyzes
exhaustively the best features and the disadvantages of each. Our people, having
experienced both systems, are faced with a difficult decision to make.
 Madam President and my dear colleagues, even in our own Committee, I had to
break the tie in favor of unicameralism. Commissioner Sarmiento, in his Resolution
No. 396, aptly stated that the Philippines needs a unicameral legislative assembly
which is truly representative of the people, responsive to their needs and welfare,
economical to maintain and efficient and effective in the exercise of its powers,
functions and duties in the discharge of its responsibilities. Commissioner Tingson,
however, said that despite its simplicity of organization, resulting in economy and
efficiency, and achieving a closer relationship between the legislative and executive,
it also resulted in the authoritarian manipulation by the Chief Executive, depriving in
the process the people from expressing their true sentiments through their chosen
representatives. Thus, under Resolution No. 321, Commissioner Tingson calls for the
restoration of the bicameral form of legislature to maximize the participation of people
in decision-making.

43I, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 35, (Monday July 21,
1986).

44I, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 35, (Monday July 21,
1986), which reads in part:

xxx

With 22 Members voting for a unicameral system and 23 Members voting for
bicameralism, the Body approved the proposal for a bicameral legislature.

45Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995, pp. 310-
311.

III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 102 (Tuesday and

46

Wednesday, October 7 and 8, 1987).

47III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 103 (Thursday, October

9, 1986), which reads in part:

xxx

With 29 Members voting in favor, none against and 7 abstentions, the Body
approved, on Third Reading, the Article on the Legislative.

48III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 104 (Friday, October

10, 1986).

V, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 109 (Wednesday,

49

October 15, 1986), which reads in part:

xxx

MR. GUINGONA: Madam President, I have the honor on behalf of the Sponsorship
Committee to officially announce that on October 12, the 1986 Constitutional
Commission had completed under the able, firm and dedicated leadership of our
President, the Honorable Cecilia Muñoz Palma, the task of drafting a Constitution for
 our people, a Constitution reflective of the spirit of the time — a spirit of nationalism,
a spirit of dedication to the democratic way of life, a spirit of liberation and rising
expectations, a spirit of confidence in the Filipino. On that day, Madam President, the
Members of this Constitutional Commission had approved on Third Reading the draft
Constitution of the Republic of the Philippines — a practical instrument suited to the
circumstances of our time but which is broad enough to allow future generations to
respond to challenges which we of this generation could not foretell, a Charter which
would seek to establish in this fair land a community characterized by social
progress, political stability, economic prosperity, peace, justice and freedom for all…

I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986) AND I RECORD,

50

CONSTITUTIONAL COMMISSION 486-487 (July 14, 1986).

51 I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986).

52 I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986).

53 I RECORD, CONSTITUTIONAL COMMISSION 486-487 (July 14, 1986).

54 I RECORD, CONSTITUTIONAL COMMISSION 510 (July 14, 1986).

55 II RECORD, CONSTITUTIONAL COMMISSION 434 (July 30, 1986).

56Lawrence Tribe, as cited in It is a Constitution We Are Expounding, p. 21 (2009),

previously published in AMERICAN CONSTITUTIONAL LAW, Chapter 1: Approaches to
Constitutional Analysis (3rd ed.2000).
G.R. No. L-45459 March 13, 1937

GREGORIO AGLIPAY, petitioner,

vs.
JUAN RUIZ, respondent.

Vicente Sotto for petitioner.

Office of the Solicitor-General Tuason for respondent.

LAUREL, J.:

The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks
the issuance from this court of a writ of prohibition to prevent the respondent Director of Posts from
issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic
Congress.

In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues
of postage stamps commemorating the celebration in the City of Manila of the Thirty-third
international Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in the
fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the
Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of
the petitioner's attorney, the respondent publicly announced having sent to the United States the
designs of the postage stamps for printing as follows:

"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue,
green, brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are for 2,
6, 16, 20, 36 and 50 centavos." The said stamps were actually issued and sold though the greater
part thereof, to this day, remains unsold. The further sale of the stamps is sought to be prevented by
the petitioner herein.

The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the
instant case, although he admits that the writ may properly restrain ministerial functions. While,
generally, prohibition as an extraordinary legal writ will not issue to restrain or control the
performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and
enforcement are regulated by statute and in this jurisdiction may issue to . . . inferior tribunals,
corporations, boards, or persons, whether excercising functions judicial or ministerial, which are
without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs.
516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to
"functions" in the statute are undoubtedly comprehensive and include the challenged act of the
respondent Director of Posts in the present case, which act because alleged to be violative of the
Constitution is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule, therefore, in the
jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to keep them
within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction
of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without
or in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the
orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive
or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43
Phil., 304, 307.)

The more important question raised refers to the alleged violation of the Constitution by the
respondent in issuing and selling postage stamps commemorative of the Thirty-third International
Eucharistic Congress. It is alleged that this action of the respondent is violative of the provisions of
section 23, subsection 3, Article VI, of the Constitution of the Philippines, which provides as follows:

No public money or property shall ever be appropriated, applied, or used, directly or

indirectly, for the use, benefit, or support of any sect, church, denomination, secretarian,
institution, or system of religion, or for the use, benefit, or support of any priest, preacher,
minister, or other religious teacher or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage,
or leprosarium.

The prohibition herein expressed is a direct corollary of the principle of separation of church and
state. Without the necessity of adverting to the historical background of this principle in our country,
it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the
union of church and state is prejudicial to both, for ocassions might arise when the estate will use the
church, and the church the state, as a weapon in the furtherance of their recognized this principle of
separation of church and state in the early stages of our constitutional development; it was inserted
in the Treaty of Paris between the United States and Spain of December 10, 1898, reiterated in
President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of
1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the
Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this
country we enjoy both religious and civil freedom. All the officers of the Government, from the
highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to
recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations
and recognized implications. It should be stated that what is guaranteed by our Constitution is
religious liberty, not mere religious toleration.

Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for
religion and is not denial of its influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into
the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When
the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in
order to establish a government that shall embody their ideals, conserve and develop the patrimony
of the nation, promote the general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and democracy," they thereby
manifested reliance upon Him who guides the destinies of men and nations. The elevating influence
of religion in human society is recognized here as elsewhere. In fact, certain general concessions
are indiscriminately accorded to religious sects and denominations. Our Constitution and laws
exempt from taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art.
VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended thereto; Assessment
Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher, minister
or other religious teacher or dignitary as such is assigned to the armed forces or to any penal
institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines).
Optional religious instruction in the public schools is by constitutional mandate allowed (sec. 5, Art.
XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of Holy
Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm.
Code) because of the secular idea that their observance is conclusive to beneficial moral results.
The law allows divorce but punishes polygamy and bigamy; and certain crimes against religious
worship are considered crimes against the fundamental laws of the state (see arts. 132 and 133,
Revised Penal Code).

In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in
question under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows:
 No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND
MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY
NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF
POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES.

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 sum of sixty thousand pesos is hereby appropriated and made immediately
available out of any funds in the Insular Treasury not otherwise appropriated, for the costs of plates
and printing of postage stamps with new designs, and other expenses incident thereto.

SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and
Communications, is hereby authorized to dispose of the whole or any portion of the amount herein
appropriated in the manner indicated and as often as may be deemed advantageous to the
Government.

SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury.

SEC. 4. This act shall take effect on its approval.

Approved, February 21, 1933.

It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and
printing of postage stamps with new designs and other expenses incident thereto, and authorizes
the Director of Posts, with the approval of the Secretary of Public Works and Communications, to
dispose of the amount appropriated in the manner indicated and "as often as may be deemed
advantageous to the Government". The printing and issuance of the postage stamps in question
appears to have been approved by authority of the President of the Philippines in a letter dated
September 1, 1936, made part of the respondent's memorandum as Exhibit A. The respondent
alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted.
He estimates the revenue to be derived from the sale of the postage stamps in question at
P1,618,17.10 and states that there still remain to be sold stamps worth P1,402,279.02.

Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the
discretionary power to determine when the issuance of special postage stamps would be
"advantageous to the Government." Of course, the phrase "advantageous to the Government" does
not authorize the violation of the Constitution. It does not authorize the appropriation, use or
application of public money or property for the use, benefit or support of a particular sect or church.
In the present case, however, the issuance of the postage stamps in question by the Director of
Posts and the Secretary of Public Works and Communications was not inspired by any sectarian
denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church.
Nor were money derived from the sale of the stamps given to that church. On the contrary, it
appears from the latter of the Director of Posts of June 5, 1936, incorporated on page 2 of the
petitioner's complaint, that the only purpose in issuing and selling the stamps was "to advertise the
Philippines and attract more tourist to this country." The officials concerned merely, took advantage
of an event considered of international importance "to give publicity to the Philippines and its people"
(Letter of the Undersecretary of Public Works and Communications to the President of the
Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the stamps as
actually designed and printed (Exhibit 2), instead of showing a Catholic Church chalice as originally
planned, contains a map of the Philippines and the location of the City of Manila, and an inscription
as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937." What is emphasized is
not the Eucharistic Congress itself but Manila, the capital of the Philippines, as the seat of that
congress. It is obvious that while the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting propaganda, if any, received
by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the
opinion that the Government should not be embarassed in its activities simply because of incidental
results, more or less religious in character, if the purpose had in view is one which could legitimately
be undertaken by appropriate legislation. The main purpose should not be frustrated by its
subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295;
20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)

We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate
the complete separation of church and state and curb any attempt to infringe by indirection a
constitutional inhibition. Indeed, in the Philippines, once the scene of religious intolerance and
prescription, care should be taken that at this stage of our political development nothing is done by
the Government or its officials that may lead to the belief that the Government is taking sides or
favoring a particular religious sect or institution. But, upon very serious reflection, examination of Act
No. 4052, and scrutiny of the attending circumstances, we have come to the conclusion that there
has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts,
with the approval of the Secretary of Public Works and Communications, discretion to misuse
postage stamps with new designs "as often as may be deemed advantageous to the Government."
Even if we were to assume that these officials made use of a poor judgment in issuing and selling
the postage stamps in question still, the case of the petitioner would fail to take in weight. Between
the exercise of a poor judgment and the unconstitutionality of the step taken, a gap exists which is
yet to be filled to justify the court in setting aside the official act assailed as coming within a
constitutional inhibition.

The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So
ordered.

Avanceña, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
REPUBLIC ACT No. 3046
(as amended by RA 5446)

AN ACT DEFINE THE BASELINES OF THE TERRITORIAL SEA OF THE PHILIPPINES.

WHEREAS, the Constitution of the Philippines describes the national territory as comprising all the
territory ceded to the United States by the Treaty of Paris concluded between the United States and
Spain on December 10, 1898, the limits of which are set forth in Article III of said treaty, together
with all the islands embraced in the treaty concluded at Washington, between the United States and
Spain on November 7, 1900, and in the treaty concluded between the United States and Great
Britain on January 2, 1930, and all the territory over which the Government of the Philippine Islands
exercised jurisdiction at the time of the adoption of the Constitution;

WHEREAS, all the waters within the limits set forth in the above-mentioned treaties have always
been regarded as part of the territory of the Philippine Islands;

WHEREAS, all the waters around, between and connecting the various islands of the Philippines
archipelago, irrespective of their width or dimension, have always been considered as necessary
appurtenances of the land territory, forming part of the inland or internal waters of the Philippines;

WHEREAS, all the waters beyond the outermost islands of the archipelago but within the limits of
the boundaries set forth in the aforementioned treaties comprise the territorial sea of the Philippines;

WHEREAS, the baselines from which the territorial sea of the Philippines is determined consist of
straight lines joining appropriate points of the outermost islands of the archipelago; and

WHEREAS, the said baselines should be clarified and specifically defined and described for the
information of all concerned; Now, therefor,

Section 1. The baselines for the territorial sea of the Philippines are hereby defined and described
specifically as follows:

Distance in
N. Latitude E. Longitude Asimuth
Meters
Y'ami Island (E) 21º07'03" 121º57'24" 353º27' 71,656
Line 1 (Yami I. (E.) — Tumaruk
Rk.)

Tumaruk Rk. 20º28'28" 122º02'06" 347º13' 58,105

Line 2 (Tumaruk Rk. — Balintang
Is.)

Balintang Island 19º57'45" 122º09'28" 375º05' 97,755

Line 3 (Balingtang Is.— Didicas
Rk.)

Didicas Rk. 19º04'50" 122º12'18" 350º39' 86,155

Line 4 (Didicas Rk. - Iligan Pt.)
Iligan Pt. 18º18'45" 122º20'15" 351º23' 136,030
Line 5 (Iligan Pt. - Ditolong Pt.)
Ditolong Pt. 17º05'50" 122º31'44" 16º56' 34,378
Line 6 (Ditolong Pt. - Diviuisa Pt.)

Diviuisa Pt. 16º48'00" 122º26'06" 21º01' 57,781

Line 7 (Diviuisa Pt. - Dijohan Pt.)
Dijohan Pt. 16º18'45" 122º14'28" 10º52' 142,360
Line 7a (Dijohan Pt. - Bulubalik
Pt.)

Bulubalik Pt. 15º02'56" 121º59'30" 300º15' 120,986

Line 8 (Bulubalik Pt. - Tinaga I.)
Tinaga I. 14º29'45" 122º57'40" 286º27' 148,690
Line 9 (Tinaga I. - Horadaba
Rks.)
Horadaba Rks. 14º06'41" 124º16'54" 306º34' 1,083
Line 10 (Horadaba Rks. —
Matulin Rk.)

Matulin Rk. 14º06'20" 124º17'23" 331º46' 178,480

Line 11 (Matulin Rk. - Atalaya Pt.)
Atalaya Pt. 12º40'59" 125º04'02" 313º30' 22,268
Line 11a (Atalaya Pt. - Finch Rk.)
Finch Rk. 12º32'40" 125º12'57" 313º56' 12,665
Line 12 (Finch Rk. - SE of Manjud
Pt.)
SE Manjud pt. 12º27'54" 125º17'59" 322º27' 14,225
Line 12a (SE of Manjud Pt. - Sora
Cay)
Sora Cay 12º21'47" 125º22'46" 321º03' 22,793
Line 13 (Sora Cay - Bunga Pt.)
Bunga Pt. 12º12'10" 125º30'40" 331º50' 12,686
Line 13a (Bunga Pt. - Tubabao I.)

Tubabao I. 23º06'06" 125º33'58" 355º22' 83,235

Line 14 (Tubabao I. - Tugnug Pt.)

Tugnug Pt. 11º21'06" 125º37'40" 331º03' 75,326

Line 15 (Tugnug Pt. - Suluan I.)

Suluan Island 10º45'20" 125º57'40" 347º51' 107,070

Line 16 (Suluan I. - Tuason Pt.)
Tuason Pt. 9º48'33" 126º10'00" 355º25' 55,415
Line 17 (Tuason Pt. - Cauit Pt.)

Cauit Pt. 9º18'35" 126º12'25" 342º44' 49,703

Line 18 (Cauit Pt. Arangasa Is.)
Arangasa Is. 8º52'50" 126º20'28" 348º40' 131,330
Line 19 Arangasa Is. -
Quinablangan I.)

Quinablangan I. 7º42'58" 126º34'30" 353º08' 25,619

Line 19a (Quinablangan I. -
Above Languyan R.)
Above Languyan R. 7º29'10" 126º36'10" 356º52' 22,489
Line 20 (Above Languyan R. —
Pusan Pt.)
Pusan Pt. 7º16'59" 126º36'50" 26º39' 36,259
Line 21 (Pusan Pt. - Tuguban Pt.)

Tuguban Pt. 6º59'24" 126º28'00" 20º33' 83,350

Line 22 (Tuguban Pt. - Cape S.
Agustin N.)
Cape San Agustin (N) 6º17'03" 126º12'08" 30º16' 1,707
Line 22a (Cape S. Agustin (N) —
Cape San Agustin (S)
Cape San Agustin (S) 6º16'15" 126º11'40" 39º23' 125,100
Line 23 (Cape S. Agustin (S) —
Panguil Bato Pt.)

Panguil Bato Pt. 5º23'45" 125º28'42" 66º32' 7,484

Line 23a (Panguil Bato Pt. -
Tapundo Pt.)
Tapudo Pt. 5º22'08" 125º24'59" 89º19' 7,667
Line 24 (Tapundo Pt. - Manamil
I.)

Manamil I. 5º22'05" 125º20'50" 139º01' 3,051

Line 24a (Manamil I. - Balut I. (W)

Balut I. (W) 5º23'20" 125º19'45" 124º47' 149,840

Line 25 (Balut I. (W) - Middle of 3
Rk. Awash)

Middle of 3 Rk. Awash 6º09'39" 124º13'02" 86º18' 259,400

Line 26 (Middle of 3 Rk. Awash
— Tongquil I.)

Tongquil I. 6º00'15" 121º52'45" 61º29' 115,950

Line 27 (Tongquil I. -
Sumbasumba I.)

Sumbasumba I. 5º30'10" 120º57'35" 43º19' 44,445

Line 28 (Sumbasumba I. -
Kinapusan Is.)
Kinapusan Is. 5º12'37" 120º41'05" 63º14' 101,290
Line 29 (Kinapusan Is. - Manuk
Manka I.)

Manuk Manka I. 4º47'50" 119º52'10" 58º30' 80,847

Line 30 (Manuk Manka I. -
Frances Reef)
Frances Reef 4º24'54" 119º14'54" 134º34' 29,330
Line 31 (Frances Reef - Bajapa
Reef)
Bajapa Reef 4º36'04" 119º03'36" 164º05' 13,480
Line 32 (Bajapa Reef) - Panguan
I.)
Panguan I. 4º43'06" 119º01'36" 238º48' 42,470
Line 33 (Panguan I. - Omapoy I.)
Omapoy I. 4º55'02" 119º21'15" 246º11' 51,005
Line 34 (Omapoy I. - Sanga-
Sanga I.)
Sanga-Sanga I. 5º06'12" 119º46'30" 170º05' 80,200
Line 35 (Sanga-Sanga I. - Pearl
Bank)

Pearl Bank 5º49'04" 119º39'01" 103º13' 137,050

Line 36 (Pearl Bank - Baguan I.)
Baguan I 6º06'00" 118º26'42" 76º52' 15,535
Line 36a (Banguan I. - Taganak
I.)
Taganak I. 6º04'05" 118º18'30" 118º39' 24,805
Line 37 (Taganak I. - Gt.
Bakkungaan O

Gt. Bakkungaan 6º10'32" 118º06'42" 136º04' 18,470

Line 37a (Gt. Bakkungaan -
Sibaung I.)

Sibaung I. 6º17'45" 117º59'45" 215º36' 79,915

Line 38 (Sibaung - I. Muligi I.

Mulugi I. 6º53'00" 118º25'00" 119º14' 140,541

Line 39 (Mulugi I. - Mangsee Is.)
Mangsee Is. 7º30'10" 117º18'20" 134º50 48,815
Line 39a (Mangsee Is. - Cape
Melville)
Cape Melville 7º48'50" 116º59'30" 153º54' 15,665
Line 40 (Cape Melville - Ligas Pt.)
Ligas Pt. 7º56'28" 116º55'45" 170º40' 5,666
Line 41 (Ligas Pt. - Cay)

Cay 7º59'30" 116º55'15" 204º52' 22,925

Line 41a (Cay-Secam I.)
Secam I. 8º10'47" 117º00'30" 209º09' 54,900
Line 42 (Secam I. - N. of Canipan
Bay)

N. of Canipan Bay 8º36'50" 117º15'06" 218º57' 18,570

Line 43 (N. of Canipan Bay —
Tatub Pt.)

Tatub Pt. 8º44'40" 117º21'28" 222º04' 45,125

Line 44 (Tatub Pt. - Punta Baja)
Punta Baja 9º02'50" 117º37'58" 223º30' 32,194
Line 45 (Punta Baja - Malapackun
I.)

Malapackun I. 9º15'30" 117º50'04" 225º50' 148,260

Line 46 (Malapackun I. - Piedras
Pt.)

Piedras Pt. 10º11'28" 118º48'18" 203º19' 124,900

Line 47 (Piedras Pt. - Tapuitan I.)

Tapuitan I. 11º13'40" 119º15'28" 208º47' 136,590

Line 48 (Tapuitan I. - Pinnacle
Rk.)
Pincle Rk. 12º18'34" 119º51'45" 200º40' 134,230
Line 49 (Pinnacle Rk. - Cape
Calavite

Cape Calavite 13º26'40" 120º18'00" 148º12' 58,235

Line 50 (Cape Calavite - Cabra I.)

Cabra I. 13º53'30" 120º00'58" 179º26' 113,400

Line 51 (Cabra I. - Capones Is.)
Capones Is. 14º55'00" 120º00'20" 168º09' 58,100
Line 52 (Capones Is. - Pa-Lauig
Pt.)

Palauig Pt. 15º25'50" 119º53'40" 164º17' 40,870

Line 53 (Palauig. - Hermana
Mayor I.)

Hermana Mayor I. 15º47'10" 119º47'28" 167º10' 20,490

Line 53a (Hermana Mayor —
Tambobo Pt.)
Tambobo Pt. 15º58'00" 119º44'55" 181º43' 22,910
Line 54 (Tambobo Pt. - Rena Pt.)
 Rena Pt. 16º10'25" 119º45'18" 191º39' 18,675
Line 54a (Rena Pt. - Cape
Bolinao

Cape Bolinao 16º20'20" 119º47'25" 226º20' 80,016

Line 55 (Cape Bolinao -
Darigayos Pt.)
Darigayos Pt. 16º50'15" 120º20'00" 179º58' 81,616
Line 56 (Darigayos Pt. - Dile Pt.)

Dile Pt. 17º34'30" 120º19'58" 188º27' 12,060

Line 56a (Disle Pt. - Pinget I.)

Pinget I. 17º40'58" 120º20'58" 192º46' 27,170

Line 56b (Pinget I. - Badoc I.)
Badoc I. 17º55'20" 120º24'22" 195º03' 65,270
Line 57 (Badoc I. - Cape
Bojeador)

Cape Bojeador 18º29'30" 120º34'00" 222º16' 101,740

Line 58 (Cape Bojeador - Dalupiri
I.)

Dalupiri I. 19º10'15" 121º13'02" 213º29' 25,075

Line 59 (Dalupiri I. - Catanapan
Pt.)

Catanapan Pt. 19º21'35" 121º20'56" 202º27' 116,870

Line 60 (Catanapan Pt. - Dequey
I.)

Dequey I. 29º20'06" 121º46'35" 180º47' 42,255

Line 61 (Dequey I. - Raile)

Raile 20º43'00" 121º46'55" 200º30' 48,140

Line 62 (Raile - Y'ami I. (W)

Y'ami I.(W) 21º07'26" 121º56'39" 238º40' 237

Line 63 (Y'ami I. (W) - Y'ami I. (M)
Y'ami I. (M) 21º07'30" 121º56'46" 307º08' 1,376
Line 64 (Y'ami I.(M) - Y'ami I. (E)
Y'ami I. (E) 21º07'03" 121º57'24"

Section 2. All waters within the baselines provided for in Section one hereof are considered inland
or internal waters of the Philippines.

Section 3. This Act shall take effect upon its approval.

Approved: June 17, 1961.

 Fourteenth Congress
Second Regular Session

Begun and held in Metro Manila, on Monday, the twenty-eight day of July, two thousand eight.

Republic Act No. 9522 March 10, 2009

AN ACT TO AMEND CERTAIN PROVISIONS OF REPUBLIC ACT NO. 3046, AS AMENDED

BY REPUBLIC ACT NO. 5446, TO DEFINE THE ARCHIPELAGIC BASELINE OF THE
PHILIPPINES AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled::

Section 1. Section 1 of Republic Act No. 3046, entitled "An Act to Define the Baselines of the
Territorial Sea of the Philippines", as amended by Section 1 of Republic Act No. 5446, is hereby
amended to read as follows:

Section 1. The baselines of the Philippines archipelago are hereby defined and described
specifically as follows:

Basepoint Station Location World Geodetic System of 1984 Distance

Number Name (WGS 84) Coordinates to next
basepoint
Latitude (N) Longitude (E) (M)
1 PAB-01 Amianan Is. 21º6’57.73" 121º57’27.71" 70.08
2 PAB-02 Balintang Is. 19º57’38.19" 122º9’46.32" 99.17
3 PAB-04 Bigan Pt. 18º18’35.30" 122º20’19.07" 71.83
4 PAB-05A Ditolong Pt. 17º7’16.30" 122º31’28.34" 1.05
5 PAB-05B Ditolong Pt. 17º6’14.79" 122º31’43.84" 0.39
6 PAB-05 Ditolong Pt. 17º5’51.31" 122º31’42.66" 3.29
7 PAB-06 Spires Is. 17º2’36.91" 122º31’3.28" 9.74
8 PAB-06B Digollorin Pt. 16º59’18.03" 122º27’56.61" 3.51
9 PAB-06C Digollorin Rk. 16º49’56.11" 122º26’50.78" 2.40
10 PAB-07 Divimisa Pt. 16º47’38.86" 122º26’4.40" 30.94
11 PAB-08 Dinoban Pt. 16º18’44.33" 122º14’06.69" 116.26
12 PAB-10A Tinaga Is. 14º29’54.43" 122º57’51.15" 80.29
13 PAB-11 Horodaba Rk. 14º6.29.91" 124º16’59.21" 0.54
14 PAB-12 Matulin Rk. 14º6.10.40" 124º17’26.28" 96.04
15 PAB-13 Atalaya Pt. 12º41’6.37" 125º3’53.71" 6.79
16 PAB-13A Bacan Is. 12º36’18.41" 125º8’50.19" 5.52
17 PAB-14 Finch Rk. 12º32.33.62" 125º12’59.70" 0.80
18 PAB-14A Cube Rk. 12º31.57.45" 125º13’32.37" 4.90
19 PAB-14D NW Manjud Pt. 12º28’36.42" 125º17’12.32" 1.30
20 PAB-15 SE Manjud Pt. 12º27’37.51" 125º18’5.23" 7.09
21 PAB-16A S Sorz Cay 12º21’41.64" 125º23’7.41" 5.68
22 PAB-16B Panablihon 12º17’27.17" 125º27’0.12" 5.21
23 PAB-16C Alugon 12º13’21.95" 125º30’19.47" 1.94
24 PAB-16D N Bunga Pt. 12º11’48.16" 125º31’30.88" 0.54
25 PAB-17 E Bunga Pt. 12º11’20.67" 125º31’48.29" 5.71
26 PAB-18A SE Tobabao Is. 12º6’7.00" 125º34’11.94" 83.94
27 PAB-19C Suluan Is. 10º45’16.70" 125º58’8.78" 56.28
28 PAB-19D N Tuason Pt. 9º49’59.58" 126º10’6.39" 57.44
29 PAB-20A Arangasa Is. 8º53’16.62" 126º20’48.81" 40.69
30 PAB-21B Sanco Pt. 8º13’11.53" 126º28’53.25" 30.80
31 PAB-22 Bagoso Is 7º42’45.02" 126º34’29.08" 12.95
32 PAB-22C Languyan 7º29’49.47" 126º35’59.24" 0.54
33 PAB-23 Languyan 7º29’16.93" 126º35’59.50" 0.76
34 PAB-23B Languyan 7º28’30.97" 126º35’57.30" 1.2
35 PAB-23C N Baculin Pt. 7º27’29.42" 126º35’51.31" 10.12
36 PAB-24 Pusan Pt. 7º17’19.80" 126º36’18.26" 1.14
37 PAB-24A S Pusan Pt. 7º16’14.43" 126º35’57.20" 63.28
38 PAB-25B Cape San Agustin 6º17’14.73" 126º12’14.40" 1.28
39 PAB-25 Cape San Agustin 6º16’8.35" 126º11’35.06" 67.65
40 PAB-26 SE Sarangani Is. 5º23’34.20" 125º28’42.11" 0.43
41 PAB-27 Pangil Bato Pt. 5º23’21.80" 125º28’19.59" 3.44
42 PAB-28 Tapundo Pt. 6º21’55.66" 126º25’11.21" 3.31
43 PAB-29 W Calia Pt. 5º21’58.48" 125º21’52.03" 0.87
44 PAB-30 Manamil Is. 5º22’2.91" 125º20’59.73" 1.79
45 PAB-31 Marampog Pt. 5º23’20.18" 125º19’44.29" 78.42
46 PAB-32 Pola Pt. 6º9’8.44" 124º15’42.81" 122.88
47 PAB-33A Kantuan Is 6º26’47.22" 122º13.34.50" 29.44
48 PAB-34A Tongguil Is. 6º2’33.77" 121º56’36.20" 2.38
49 PAB-35 Tongquil Is 6º1’8.51" 121º54’41.45" 1.72
50 PAB-35A Tongquil Is. 6º0’17.88" 121º63’11.17" 85.94
51 PAB-38A Kirapusan Is 5º12.8.70" 120º41’38.14" 55.24
52 PAB-39 Manuk Manka Is. 4º47’39.24" 119º51’58.08" 43.44
53 PAB-40 Frances Reef 4º24’53.84" 119º14’50.71 0.61
54 PAB-40A Frances Reef 4º25’3.83" 119º14’15.15" 15.48
55 PAB-41A Bajapa Reef 4º36"9.01" 119º3’22.75" 6.88
56 PAB-42A Paguan Is. 4º42’52.07" 119º1’44.04" 8.40
57 PAB-43 Alice Reef 4º45’55.25" 119º3’15.19" 2.28
58 PAB-44 Alice Reef 4º47’5.36" 119º5’12.94" 18.60
59 PAB-45 Omapoy Rk. 4º55’10.45" 119º22’1.30 23.37
60 PAB-46 Bukut Lapis Pt. 5º2’23.73" 119º44’18.14" 44.20
61 PAB-47 Pearl Bank 5º46’35.15" 119º39’51.77" 75.17
62 PAB-48 Bagnan Is. 6º5’58.41" 118º26’57.30" 8.54
63 PAB-48A Taganak Is 6º4’14.08" 118º18’33.33" 13.46
64 PAB-49 Great Bakkungaan Is. 6º11’4.65" 118º6’54.15" 3.97
65 PAB-50 Libiman Is. 6º13’39.90" 118º3’52.09" 5.53
66 PAB-51 Sibaung Is. 6º17’43.99" 118º0’5.44" 41.60
67 PAB-52 Muligi Is. 6º52’14.53" 118º23’40.49" 75.06
68 PAB-53 South Mangsee Is. 7º30’26.05" 117º18’33.75" 26.00
69 PAB-54 Balabac Is. 7º48’30.69" 116º59’39.18" 6.08
70 PAB-54A Balabac Great Reef 7º51’27.17" 116º54’17.19" 1.18
71 PAB-54B Balabac Great Reef 7º52’19.86" 116º53’28.73" 2.27
72 PAB-55 Balabac Great Reef 7º54’36.35" 116º53’16.64" 5.42
73 PAB-60 Ada Reef 8º2’0.26" 116º54’10.04" 10.85
74 PAB.61 Secam Is. 8º11’18.36" 116º59’51.87" 30.88
75 PAB-62 Latua Pt. 8º87’56.37" 117º15’51.23" 7.91
 76 PAB-63 SW Tatub Pt. 8º44’17.40" 117º20’39.37" 11.89
77 PAB-63A W Sicud Pt. 8º53’32.20" 117º28’15.78" 13.20
78 PAB-64 Tarumpitao Pt. 9º2.57.47" 117º37’38.88" 81.12
79 PAB.64B Dry Is. 9º59’22.54" 118º36’53.61" 82.76
80 PAB-65C Sinangcolan Pt. 11º13’19.82" 119º15’17.74" 74.65
81 PAB-67 Pinnacle Rk. 12º19’35.22" 119º50’56.00 93.88
82 PAB-68 Cabra Is 13º53’24.45" 120º1’5.86" 115.69
83 PAB-71 Hermana Mayor Is. 15º48’43.61" 119º46’56.09" 9.30
84 PAB-72 Tambobo Pt. 15º57’61.67" 119º44’55.32" 12.06
85 PAB-72B Rena Pt. 16º9’57.90" 119º45.15.76" 0.25
86 PAB-73 Rena Pt. 16º10’12.42" 119º45’11.95" 6.43
87 PAB-74 Rocky Ledge 16º16’34.46" 119º46’19.50" 0.65
88 PAB-74A Piedra Pt. 16º37’12.70" 119º46’28.62" 1.30
89 PAB-75 Piedra Pt. 16º18’29.49" 119º46’44.94" 1.04
90 PAB-75C Piedra Pt. 16º19’28.20" 119º47’7.69" 0.63
91 PAB-75D Piedra Pt. 16º20’4.38" 119º47’20.48" 80.60
92 PAB-76 Dile Pt. 17º34’24.94" 120º20’33.36" 6.86
93 PAB-77 Pinget Is. 17º41’17.56" 120º21’2.20" 14.15
94 PAB-78 Baboc Is. 17º55’4.13" 120º24’40.56" 35.40
95 PAB-79 Cape Bojeador 18º29’32.42" 120º33’42.41" 1.77
96 PAB-79B Bobon 18º30’52.88" 120º34’55.35" 58.23
97 PAB-80 Calagangan Pt. 19º10’14.78" 121º12’52.64" 98.07
98 PAB-82 Itbayat Is. 20º43’15.74" 121º46’57.80" 25.63
99 PAB-83 Amianan Is 21º7’17.47" 121º56’43.85" 0.08
100 PAB-84 Amianan Is. 21º7’18.41" 121º56’48.79" 0.25
101 PAB-85 Amianan Is. 21º7’12.04" 121º57’3.65" 0.44

Section 2. The baseline in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the
Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and

b) Bajo de Masinloc, also known as Scarborough Shoal.

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and
jurisdiction over all portions of the national territory as defined in the Constitution and by provisions
of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, as amended.

Section 4. This Act, together with the geographic coordinates and the chart and maps indicating the
aforesaid baselines, shall be deposited and registered with the Secretary General of the United
Nations.

Section 5. The National Mapping and Resource Information Authority (NAMRIA) shall forthwith
produce and publish charts and maps of the appropriate scale clearly representing the delineation of
basepoints and baselines as set forth in this Act.

Section 6. The amount necessary to carry out the provisions of this Act shall be provided in a
supplemental budyet or included in the General Appropriations Act of the year of its enactment into
law.

Section 7. If any portion or provision of this Act is declared unconstitutional or invalid the other
portions or provisions hereof which are not affected thereby shall continue to be in full force and
effect.

Section 8. The provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, and all
other laws, decrees, executive orders, rules and issuances inconsistent with this Act are hereby
amended or modified accordingly.

Section 9. This Act shall take effect fifteen (15) days following its publication in the Official
Gazette or in any two (2) newspaper of general circulation.

Approved

(Sgd.) PROSPERO C. NOGRALES (Sgd.) JUAN PONCE ENRILE

Speaker of the House of President of the Senate
Representatives

This Act which is a consolidation of Senate Bill No. 2699 and House Bill No. 3216 was finally passed
by the Senate and the House of Representative on February 17, 2009.

(Sgd.) MARILYN B. BARUA-YAP (Sgd.) EMMA LIRIO-REYES

Secretary General Secretary of Senate
House of Represenatives

Approved: MAR 10, 2009

(Sgd.) GLORIA MACAPAGAL-ARROYO

President of the Philippines
G.R No. 187167 August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF.

HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ,
FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA,
ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAÑETE, VANN
ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO
FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA
MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM
RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON,
JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS
SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS,
HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS
ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY,
and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE
PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED
NATIONS,Respondents.

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic
Act No. 95221(RA 9522) adjusting the country’s archipelagic baselines and classifying the baseline
regime of nearby territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of
the Philippines as an archipelagic State.3 This law followed the framing of the Convention on the
Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the
sovereign right of States parties over their "territorial sea," the breadth of which, however, was left
undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960
(UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting
typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny.
The change was prompted by the need to make RA 3046 compliant with the terms of the United
Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27
February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of
baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application
for the extended continental shelf.8 Complying with these requirements, RA 9522 shortened one
baseline, optimized the location of some basepoints around the Philippine archipelago and classified
adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
"regimes of islands" whose islands generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as
"citizens, taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522
on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically,
the reach of the Philippine state’s sovereign power, in violation of Article 1 of the 1987
Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522
opens the country’s waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening the country’s
nuclear-free policy, and damaging marine resources, in violation of relevant constitutional
provisions.13

In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands" not only
results in the loss of a large maritime area but also prejudices the livelihood of subsistence
fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for
what it excluded and included – its failure to reference either the Treaty of Paris or Sabah and its use
of UNCLOS III’s framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the
petition’s compliance with the case or controversy requirement for judicial review grounded on
petitioners’ alleged lack of locus standi and (2) the propriety of the writs of certiorari and prohibition
to assail the constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the
country’s compliance with the terms of UNCLOS III, preserving Philippine territory over the KIG or
Scarborough Shoal. Respondents add that RA 9522 does not undermine the country’s security,
environment and economic interests or relinquish the Philippines’ claim over Sabah.

Respondents also question the normative force, under international law, of petitioners’ assertion that
what Spain ceded to the United States under the Treaty of Paris were the islands and all the
waters found within the boundaries of the rectangular area drawn under the Treaty of Paris.

We left unacted petitioners’ prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily –

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as
citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality
of RA 9522. On the merits, we find no basis to declare RA 9522 unconstitutional.

On the Threshold Issues

Petitioners Possess Locus
Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers
because the petition alleges neither infringement of legislative prerogative15 nor misuse of public
funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize
petitioners’ locus standi as citizens with constitutionally sufficient interest in the resolution of the
merits of the case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other
litigants possessing "a more direct and specific interest" to bring the suit, thus satisfying one of the
requirements for granting citizenship standing.17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test
the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue
absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or
ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.18

Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its
constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari
and prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of
acts of other branches of government.20 Issues of constitutional import are sometimes crafted out of
statutes which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance
of the case and pass upon the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool
to Demarcate the Country’s
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory

Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because it
discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related
treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory
provision denying the Philippines sovereign control over waters, beyond the territorial sea
recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States.
Petitioners argue that from the Treaty of Paris’ technical description, Philippine sovereignty over
territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing
the rectangular area delineated in the Treaty of Paris.22
Petitioners’ theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical
miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive
economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III
delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations
members to codify norms regulating the conduct of States in the world’s oceans and submarine
areas, recognizing coastal and archipelagic States’ graduated authority over a limited span of waters
and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to
mark-out specific basepoints along their coasts from which baselines are drawn, either straight or
contoured, to serve as geographic starting points to measure the breadth of the maritime zones and
continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf. – The breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall be measured from archipelagic
baselines drawn in accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to
the rest of the international community of the scope of the maritime space and submarine areas
within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation
laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in
the exclusive economic zone (Article 56) and continental shelf (Article 77).

Even under petitioners’ theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines
would still have to be drawn in accordance with RA 9522 because this is the only way to draw the
baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or
other portions of the rectangular area delineated in the Treaty of Paris, but from the "outermost
islands and drying reefs of the archipelago."24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under traditional international law typology, States acquire
(or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by
executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with
the treaty’s terms to delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules on general international
law.26

RA 9522’s Use of the Framework

of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines’ Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our
territorial claim" over that area.27Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion
from the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles
of territorial waters," prejudicing the livelihood of subsistence fishermen.28 A comparison of the
configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis-à-vis the Philippines’ obligations under UNCLOS III, belie this view.
1avv phi 1

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely
followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522
skipped to optimize the location of basepoints and adjust the length of one baseline (and thus
comply with UNCLOS III’s limitation on the maximum length of baselines). Under RA 3046, as under
RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the
Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners’ argument
branding RA 9522 as a statutory renunciation of the Philippines’ claim over the KIG, assuming that
baselines are relevant for this purpose.

Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA
9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the
location of basepoints, increased the Philippines’ total maritime space (covering its internal waters,
territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table
below:29

Extent of maritime
area using RA 3046, Extent of maritime
as amended, taking area using RA 9522,
into account the taking into account
Treaty of Paris’ UNCLOS III (in
delimitation (in square nautical
square nautical miles)
miles)
Internal or
archipelagic
waters 166,858 171,435
Territorial Sea 274,136 32,106
Exclusive
Economic Zone 382,669
TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522
even extends way beyond the waters covered by the rectangular demarcation under the Treaty of
Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent
States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III.30
Further, petitioners’ argument that the KIG now lies outside Philippine territory because the
baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the
law commits to text the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and
the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the
Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a
breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he
drawing of such baselines shall not depart to any appreciable extent from the general configuration
of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines
shall not exceed 100 nautical miles," save for three per cent (3%) of the total number of baselines
which can reach up to 125 nautical miles.31

Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough
Shoal for several decades, these outlying areas are located at an appreciable distance from the
nearest shoreline of the Philippine archipelago,33 such that any straight baseline loped around them
from the nearest basepoint will inevitably "depart to an appreciable extent from the general
configuration of the archipelago."

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic baseline because if we put them inside our
baselines we might be accused of violating the provision of international law which states: "The
drawing of such baseline shall not depart to any appreciable extent from the general configuration of
the archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by
international law to claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is defined by
the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle
doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or
the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic
baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the rule that it should follow the natural configuration of
the archipelago.34 (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits. The need to
1avv phi 1

shorten this baseline, and in addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer
limits of its maritime zones including the extended continental shelf in the manner provided by Article
47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from
some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil
Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article
47(2) of the [UNCLOS III], which states that "The length of such baselines shall not exceed
100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing
any archipelago may exceed that length, up to a maximum length of 125 nautical miles."

2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted
from the baselines system. This will enclose an additional 2,195 nautical miles of water.
 3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west coasts
of Luzon down to Palawan were later found to be located either inland or on water, not on
low-water line and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal,
Congress’ decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under
the Republic of the Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine
State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water, which is above
water at high tide," such as portions of the KIG, qualifies under the category of "regime of islands,"
whose islands generate their own applicable maritime zones.37

Statutory Claim Over Sabah under

RA 5446 Retained

Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’ claim
over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal,
keeps open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not

Incompatible with the Constitution’s
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters
to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners
extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the Constitution.38

Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as

"archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over
the body of water lying landward of the baselines, including the air space over it and the submarine
areas underneath. UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their
bed and subsoil. –

1. The sovereignty of an archipelagic State extends to the waters enclosed by the

archipelagic baselines drawn in accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.

2. This sovereignty extends to the air space over the archipelagic waters, as well as to
their bed and subsoil, and the resources contained therein.

xxxx
 4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air
space, bed and subsoil, and the resources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in
the interest of maintaining unimpeded, expeditious international navigation, consistent with the
international law principle of freedom of navigation. Thus, domestically, the political branches of the
Philippine government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent and sea lanes
passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in
Congress.41

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate
to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s
limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a
customary international law,43 thus automatically incorporated in the corpus of Philippine law.44 No
modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory measures from
the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage45 does not place them in lesser footing vis-à-
vis continental coastal States which are subject, in their territorial sea, to the right of innocent
passage and the right of transit passage through international straits. The imposition of these
passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic
States, in exchange for their right to claim all the waters landward of their baselines, regardless of
their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty.
More importantly, the recognition of archipelagic States’ archipelago and the waters enclosed by
their baselines as one cohesive entity prevents the treatment of their islands as separate islands
under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters
between islands separated by more than 24 nautical miles beyond the States’ territorial sovereignty,
subjecting these waters to the rights of other States under UNCLOS III.47

Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of

Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the
provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not embody
judicially enforceable constitutional rights x x x."49 Article II provisions serve as guides in formulating
and interpreting implementing legislation, as well as in interpreting executory provisions of the
Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology
under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate
the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of
marine wealth (Article XII, Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section
752 ), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the exploitation of all living and non-living resources within
such zone. Such a maritime delineation binds the international community since the delineation is in
strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the
international community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space – the exclusive economic zone – in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this
zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines’ Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound
to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners’
reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to
this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an
UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid
of internationally acceptable baselines from where the breadth of its maritime zones and continental
shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the
seafaring powers to freely enter and exploit the resources in the waters and submarine areas around
our archipelago; and second, it weakens the country’s case in any international dispute over
Philippine maritime space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent
areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of
the Philippines’ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the
part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our
national interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice
 JOSE PORTUGAL PEREZ JOSE C. MENDOZA
Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

RENATO C. CORONA
Chief Justice

Footnotes

1Entitled "An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by
Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other
Purposes."

2 Entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines."

3The third "Whereas Clause" of RA 3046 expresses the import of treating the Philippines as
an archipelagic State:

"WHEREAS, all the waters around, between, and connecting the various islands of
the Philippine archipelago, irrespective of their width or dimensions, have always
been considered as necessary appurtenances of the land territory, forming part of
the inland waters of the Philippines."

4One of the four conventions framed during the first United Nations Convention on the Law
of the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10
September 1964.

5
UNCLOS III entered into force on 16 November 1994.

6 The Philippines signed the treaty on 10 December 1982.

7 Article 47, paragraphs 1-3, provide:

1. An archipelagic State may draw straight archipelagic baselines joining the

outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area in
which the ratio of the area of the water to the area of the land, including atolls, is
between 1 to 1 and 9 to 1.
 2. The length of such baselines shall not exceed 100 nautical miles, except that up to
3 per cent of the total number of baselines enclosing any archipelago may exceed
that length, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the
general configuration of the archipelago. (Emphasis supplied)

xxxx

8 UNCLOS III entered into force on 16 November 1994. The deadline for the filing of
application is mandated in Article 4, Annex II: "Where a coastal State intends to establish, in
accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles,
it shall submit particulars of such limits to the Commission along with supporting scientific
and technical data as soon as possible but in any case within 10 years of the entry into force
of this Convention for that State. The coastal State shall at the same time give the names of
any Commission members who have provided it with scientific and technical advice."
(Underscoring supplied)

In a subsequent meeting, the States parties agreed that for States which became
bound by the treaty before 13 May 1999 (such as the Philippines) the ten-year period
will be counted from that date. Thus, RA 9522, which took effect on 27 March 2009,
barely met the deadline.

9 Rollo, p. 34.

10 Which provides: "The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines."

11Entered into between the Unites States and Spain on 10 December 1898 following the
conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the
United States "the archipelago known as the Philippine Islands" lying within its technical
description.

12 The Treaty of Washington, between Spain and the United States (7 November 1900),
transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain
Convention (2 January 1930) demarcating boundary lines between the Philippines and North
Borneo.

13 Article II, Section 7, Section 8, and Section 16.

Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the
14

Constitution.

15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).

Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165
16

Phil. 303 (1976).

17Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan,
Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995)
(Feliciano, J., concurring). The two other factors are: "the character of funds or assets
involved in the controversy and a clear disregard of constitutional or statutory prohibition." Id.

18 . Rollo, pp. 144-147.

19 See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623
(dismissing a petition for certiorari and prohibition assailing the constitutionality of Republic
Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v. COMELEC,
G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare
unconstitutional Republic Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003)
(issuing the writs of certiorari and prohibition declaring unconstitutional portions of Republic
Act No. 9189).

See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations,
20

G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of certiorari against the
Philippine Senate and nullifying the Senate contempt order issued against petitioner).

21 Rollo, p. 31.

22Respondents state in their Comment that petitioners’ theory "has not been accepted or
recognized by either the United States or Spain," the parties to the Treaty of Paris.
Respondents add that "no State is known to have supported this proposition." Rollo, p. 179.

23 UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner
Magallona himself defined as "a body of treaty rules and customary norms governing the
uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. x x x x" (Merlin M. Magallona, Primer on the Law of the Sea 1 [1997])
(Italicization supplied).

24 Following Article 47 (1) of UNCLOS III which provides:

An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that
within such baselines are included the main islands and an area in which the ratio of
the area of the water to the area of the land, including atolls, is between 1 to 1 and 9
to 1. (Emphasis supplied)

25Under the United Nations Charter, use of force is no longer a valid means of acquiring
territory.

26The last paragraph of the preamble of UNCLOS III states that "matters not regulated by
this Convention continue to be governed by the rules and principles of general international
law."

27 Rollo, p. 51.

28 Id. at 51-52, 64-66.

29 Based on figures respondents submitted in their Comment (id. at 182).

30 Under Article 74.

31 See note 7.

32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.

33KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123
nautical west of Zambales.

34 Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).

35 Rollo, p. 159.

36 Section 2, RA 9522.

37 Article 121 provides: "Regime of islands. —

1. An island is a naturally formed area of land, surrounded by water, which is above

water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall
have no exclusive economic zone or continental shelf."

38 Rollo, pp. 56-57, 60-64.

39Paragraph 2, Section 2, Article XII of the Constitution uses the term "archipelagic waters"
separately from "territorial sea." Under UNCLOS III, an archipelagic State may have internal
waters – such as those enclosed by closing lines across bays and mouths of rivers. See
Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: "Where the
establishment of a straight baseline in accordance with the method set forth in article 7 has
the effect of enclosing as internal waters areas which had not previously been considered
as such, a right of innocent passage as provided in this Convention shall exist in those
waters." (Emphasis supplied)

40 Mandated under Articles 52 and 53 of UNCLOS III:

Article 52. Right of innocent passage. —

1. Subject to article 53 and without prejudice to article 50, ships of all States
enjoy the right of innocent passage through archipelagic waters, in
accordance with Part II, section 3.

2. The archipelagic State may, without discrimination in form or in fact among

foreign ships, suspend temporarily in specified areas of its archipelagic
waters the innocent passage of foreign ships if such suspension is essential
for the protection of its security. Such suspension shall take effect only after
having been duly published. (Emphasis supplied)
Article 53. Right of archipelagic sea lanes passage. —

1. An archipelagic State may designate sea lanes and air routes thereabove,
suitable for the continuous and expeditious passage of foreign ships and
aircraft through or over its archipelagic waters and the adjacent territorial sea.

2. All ships and aircraft enjoy the right of archipelagic sea lanes
passage in such sea lanes and air routes.

3. Archipelagic sea lanes passage means the exercise in accordance with

this Convention of the rights of navigation and overflight in the normal mode
solely for the purpose of continuous, expeditious and unobstructed transit
between one part of the high seas or an exclusive economic zone and
another part of the high seas or an exclusive economic zone.

4. Such sea lanes and air routes shall traverse the archipelagic waters and
the adjacent territorial sea and shall include all normal passage routes used
as routes for international navigation or overflight through or over
archipelagic waters and, within such routes, so far as ships are concerned,
all normal navigational channels, provided that duplication of routes of similar
convenience between the same entry and exit points shall not be necessary.

5. Such sea lanes and air routes shall be defined by a series of continuous
axis lines from the entry points of passage routes to the exit points. Ships
and aircraft in archipelagic sea lanes passage shall not deviate more than 25
nautical miles to either side of such axis lines during passage, provided that
such ships and aircraft shall not navigate closer to the coasts than 10 per
cent of the distance between the nearest points on islands bordering the sea
lane.

6. An archipelagic State which designates sea lanes under this article may
also prescribe traffic separation schemes for the safe passage of ships
through narrow channels in such sea lanes.

7. An archipelagic State may, when circumstances require, after giving due

publicity thereto, substitute other sea lanes or traffic separation schemes for
any sea lanes or traffic separation schemes previously designated or
prescribed by it.

8. Such sea lanes and traffic separation schemes shall conform to generally
accepted international regulations.

9. In designating or substituting sea lanes or prescribing or substituting traffic

separation schemes, an archipelagic State shall refer proposals to the
competent international organization with a view to their adoption. The
organization may adopt only such sea lanes and traffic separation schemes
as may be agreed with the archipelagic State, after which the archipelagic
State may designate, prescribe or substitute them.

10. The archipelagic State shall clearly indicate the axis of the sea lanes and
the traffic separation schemes designated or prescribed by it on charts to
which due publicity shall be given.
 11. Ships in archipelagic sea lanes passage shall respect applicable sea
lanes and traffic separation schemes established in accordance with this
article.

12. If an archipelagic State does not designate sea lanes or air routes, the
right of archipelagic sea lanes passage may be exercised through the routes
normally used for international navigation. (Emphasis supplied)

41Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled "AN ACT TO
ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC
WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND
AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE
THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE
ASSOCIATED PROTECTIVE MEASURES THEREIN."

42 The relevant provision of UNCLOS III provides:

Article 17. Right of innocent passage. —

Subject to this Convention, ships of all States, whether coastal or land-

locked, enjoy the right of innocent passage through the territorial sea.
(Emphasis supplied)

Article 19. Meaning of innocent passage. —

1. Passage is innocent so long as it is not prejudicial to the peace, good

order or security of the coastal State. Such passage shall take place in
conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the

peace, good order or security of the coastal State if in the territorial sea it
engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial

integrity or political independence of the coastal State, or in any other
manner in violation of the principles of international law embodied in
the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the

defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security

of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

 (g) the loading or unloading of any commodity, currency or person
contrary to the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or

any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage

Article 21. Laws and regulations of the coastal State relating to innocent passage. —

1. The coastal State may adopt laws and regulations, in conformity with the
provisions of this Convention and other rules of international law, relating to
innocent passage through the territorial sea, in respect of all or any of the
following:

(a) the safety of navigation and the regulation of maritime traffic;

(b) the protection of navigational aids and facilities and other facilities
or installations;

(c) the protection of cables and pipelines;

(d) the conservation of the living resources of the sea;

(e) the prevention of infringement of the fisheries laws and

regulations of the coastal State;

(f) the preservation of the environment of the coastal State and the
prevention, reduction and control of pollution thereof;

(g) marine scientific research and hydrographic surveys;

(h) the prevention of infringement of the customs, fiscal, immigration

or sanitary laws and regulations of the coastal State.

2. Such laws and regulations shall not apply to the design, construction,
manning or equipment of foreign ships unless they are giving effect to
generally accepted international rules or standards.

3. The coastal State shall give due publicity to all such laws and regulations.

4. Foreign ships exercising the right of innocent passage through the

territorial sea shall comply with all such laws and regulations and all generally
 accepted international regulations relating to the prevention of collisions at
sea.

43 The right of innocent passage through the territorial sea applies only to ships and not to
aircrafts (Article 17, UNCLOS III). The right of innocent passage of aircrafts through the
sovereign territory of a State arises only under an international agreement. In contrast, the
right of innocent passage through archipelagic waters applies to both ships and aircrafts
(Article 53 (12), UNCLOS III).

44Following Section 2, Article II of the Constitution: "Section 2. The Philippines renounces

war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations." (Emphasis supplied)

45"Archipelagic sea lanes passage is essentially the same as transit passage through straits"
to which the territorial sea of continental coastal State is subject. R.R. Churabill and A.V.
Lowe, The Law of the Sea 127 (1999).

46 Falling under Article 121 of UNCLOS III (see note 37).

Within the exclusive economic zone, other States enjoy the following rights under
47

UNCLOS III:

Article 58. Rights and duties of other States in the exclusive economic zone. —

1. In the exclusive economic zone, all States, whether coastal or land-locked,

enjoy, subject to the relevant provisions of this Convention, the freedoms
referred to in article 87 of navigation and overflight and of the laying of
submarine cables and pipelines, and other internationally lawful uses of the
sea related to these freedoms, such as those associated with the operation
of ships, aircraft and submarine cables and pipelines, and compatible with
the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law apply to the
exclusive economic zone in so far as they are not incompatible with this Part.

xxxx

Beyond the exclusive economic zone, other States enjoy the freedom of the high
seas, defined under UNCLOS III as follows:

Article 87. Freedom of the high seas. —

1. The high seas are open to all States, whether coastal or land-locked.
Freedom of the high seas is exercised under the conditions laid down by this
Convention and by other rules of international law. It comprises, inter alia,
both for coastal and land-locked States:

(a) freedom of navigation;

(b) freedom of overflight;

 (c) freedom to lay submarine cables and pipelines, subject to Part VI;

(d) freedom to construct artificial islands and other installations

permitted under international law, subject to Part VI;

(e) freedom of fishing, subject to the conditions laid down in section 2;

(f) freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the
interests of other States in their exercise of the freedom of the high seas, and
also with due regard for the rights under this Convention with respect to
activities in the Area.

48 See note 13.

49Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Tañada v. Angara, 338 Phil. 546,
580-581 (1997).

50 G.R. No. 101083, 30 July 1993, 224 SCRA 792.

51 "The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino
citizens."

52 "The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources, both
inland and offshore. It shall provide support to such fishermen through appropriate
technology and research, adequate financial, production, and marketing assistance, and
other services. The State shall also protect, develop, and conserve such resources. The
protection shall extend to offshore fishing grounds of subsistence fishermen against foreign
intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine
and fishing resources."

53This can extend up to 350 nautical miles if the coastal State proves its right to claim an
extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation
to Article 77).

54 Rollo, pp. 67-69.

55 Article 47 (1) provides: "An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area in which the
ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9
to 1." (Emphasis supplied) in the Area.

The Lawphil Project - Arellano Law Foundation

 CONCURRING OPINION

VELASCO, JR., J.:

I concur with the ponencia and add the following complementary arguments and observations:

A statute is a product of hard work and earnest studies of Congress to ensure that no constitutional
provision, prescription or concept is infringed. Withal, before a law, in an appropriate proceeding, is
nullified, an unequivocal breach of, or a clear conflict with, the Constitution must be demonstrated in
such a way as to leave no doubt in the mind of the Court.1 In the same token, if a law runs directly
afoul of the Constitution, the Court’s duty on the matter should be clear and simple: Pursuant to its
judicial power and as final arbiter of all legal questions,2 it should strike such law down, however
laudable its purpose/s might be and regardless of the deleterious effect such action may carry in its
wake.

Challenged in these proceedings is the constitutionality of Republic Act (RA 9522) entitled "An Act to
Amend Certain Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the Archipelagic
Baselines Of The Philippines and for Other Purposes." For perspective, RA 3046, "An Act to Define
the Baselines of the Territorial Sea of the Philippines, was enacted in 1961 to comply with the United
Nations Convention on the Law of the Sea (UNCLOS) I. Eight years later, RA 5446 was enacted to
amend typographical errors relating to coordinates in RA 3046. The latter law also added a provision
asserting Philippine sovereignty over Sabah.

As its title suggests, RA 9522 delineates archipelagic baselines of the country, amending in the
process the old baselines law, RA 3046. Everybody is agreed that RA 9522 was enacted in
response to the country’s commitment to conform to some 1982 Law of the Sea Convention (LOSC)
or UNCLOS III provisions to define new archipelagic baselines through legislation, the Philippines
having signed3 and eventually ratified4 this multilateral treaty. The Court can take judicial notice that
RA 9522 was registered and deposited with the UN on April 4, 2009.

As indicated in its Preamble,5 1982 LOSC aims, among other things, to establish, with due regard for
the sovereignty of all States, "a legal order for the seas and oceans which will facilitate international
communication, and will promote the peaceful uses of the seas and oceans." One of the measures
to attain the order adverted to is to have a rule on baselines. Of particular relevance to the
Philippines, as an archipelagic state, is Article 47 of UNCLOS III which deals with baselines:

1. An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that within such
baselines are included the main islands and an area in which the ratio of the area of the
water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

2. The length of such baseline shall not exceed 100 nautical miles, except that up to 3 per
cent of the total number of baselines enclosing any archipelago may exceed that length, up
to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago.

xxxx
 9. The archipelagic State shall give due publicity to such charts or lists of geographical co-
ordinates and shall deposit a copy of each such chart or list with the Secretary-General of
the United Nations.6 (Emphasis added.)

To obviate, however, the possibility that certain UNCLOS III baseline provisions would, in their
implementation, undermine its sovereign and/or jurisdictional interests over what it considers its
territory,7 the Philippines, when it signed UNCLOS III on December 10, 1982, made the following
"Declaration" to said treaty:

The Government of the Republic of the Philippines [GRP] hereby manifests that in signing the 1982
United Nations Convention on the Law of the Sea, it does so with the understandings embodied in
this declaration, made under the provisions of Article 310 of the Convention, to wit:

The signing of the Convention by the [GRP] shall not in any manner impair or prejudice the
sovereign rights of the [RP] under and arising from the Constitution of the Philippines;

Such signing shall not in any manner affect the sovereign rights of the [RP] as successor of the
United States of America [USA], under and arising out of the Treaty of Paris between Spain and the
United States of America of December 10, 1898, and the Treaty of Washington between the [USA]
and Great Britain of January 2, 1930;

xxxx

Such signing shall not in any manner impair or prejudice the sovereignty of the [RP] over any
territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters
appurtenant thereto;

The Convention shall not be construed as amending in any manner any pertinent laws and
Presidential Decrees or Proclamations of the Republic of the Philippines. The [GRP] maintains and
reserves the right and authority to make any amendments to such laws, decrees or proclamations
pursuant to the provisions of the Philippine Constitution;

The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair
the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of
authority to enact legislation to protect its sovereignty independence and security;

The concept of archipelagic waters is similar to the concept of internal waters under the Constitution
of the Philippines, and removes straits connecting these waters with the economic zone or high sea
from the rights of foreign vessels to transit passage for international navigation.8 (Emphasis added.)

Petitioners challenge the constitutionality of RA 9522 on the principal ground that the law violates
Section 1, Article I of the 1987 Constitution on national territory which states:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. (Emphasis supplied.)
According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 Constitutional Commission
which drafted the 1987 Constitution, the aforequoted Section 1 on national territory was "in
substance a copy of its 1973 counterpart."9 Art. I of the 1973 Constitution reads:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories belonging to the Philippines by historic right or legal title,
including the territorial sea, the air space, the subsoil, the insular shelves, and other submarine
areas over which the Philippines has sovereignty or jurisdiction. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. (Emphasis added.)

As may be noted both constitutions speak of the "Philippine archipelago," and, via the last sentence
of their respective provisions, assert the country’s adherence to the "archipelagic principle." Both
constitutions divide the national territory into two main groups: (1) the Philippine archipelago and (2)
other territories belonging to the Philippines. So what or where is Philippine archipelago
contemplated in the 1973 and 1987 Constitutions then? Fr. Bernas answers the poser in the
following wise:

Article I of the 1987 Constitution cannot be fully understood without reference to Article I of the 1973
Constitution. x x x

xxxx

x x x To understand [the meaning of national territory as comprising the Philippine archipelago], one
must look into the evolution of [Art. I of the 1973 Constitution] from its first draft to its final form.

Section 1 of the first draft submitted by the Committee on National Territory almost literally
reproduced Article I of the 1935 Constitution x x x. Unlike the 1935 version, however, the draft
designated the Philippines not simply as the Philippines but as "the Philippine archipelago.10 In
response to the criticism that the definition was colonial in tone x x x, the second draft further
designated the Philippine archipelago, as the historic home of the Filipino people from its
beginning.11

After debates x x x, the Committee reported out a final draft, which became the initially approved
version: "The national territory consists of the Philippine archipelago which is the ancestral home of
the Filipino people and which is composed of all the islands and waters embraced therein…"

What was the intent behind the designation of the Philippines as an "archipelago"? x x x Asked by
Delegate Roselller Lim (Zamboanga) where this archipelago was, Committee Chairman Quintero
answered that it was the area delineated in the Treaty of Paris. He said that objections to the
colonial implication of mentioning the Treaty of Paris was responsible for the omission of the express
mention of the Treaty of Paris.

Report No. 01 of the Committee on National Territory had in fact been explicit in its delineation of the
expanse of this archipelago. It said:

Now if we plot on a map the boundaries of this archipelago as set forth in the Treaty of Paris, a huge
or giant rectangle will emerge, measuring about 600 miles in width and 1,200 miles in length. Inside
this giant rectangle are the 7,100 islands comprising the Philippine Islands. From the east coast of
Luzon to the eastern boundary of this huge rectangle in the Pacific Ocean, there is a distance of
over 300 miles. From the west coast of Luzon to the western boundary of this giant rectangle in the
China sea, there is a distance of over 150 miles.
When the [US] Government enacted the Jones Law, the Hare-Hawes Cutting Law and the Tydings
McDuffie Law, it in reality announced to the whole world that it was turning over to the Government
of the Philippine Islands an archipelago (that is a big body of water studded with islands), the
boundaries of which archipelago are set forth in Article III of the Treaty of Paris. It also announced to
the whole world that the waters inside the giant rectangle belong to the Philippines – that they are
not part of the high seas.

When Spain signed the Treaty of Paris, in effect she announced to the whole world that she was
ceding to the [US] the Philippine archipelago x x x, that this archipelago was bounded by lines
specified in the treaty, and that the archipelago consisted of the huge body of water inside the
boundaries and the islands inside said boundaries.

The delineation of the extent of the Philippine archipelago must be understood in the context of the
modifications made both by the Treaty of Washington of November 7, 1900, and of the Convention
of January 12, 1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and the Turtle
and Mangsee Islands. However, x x x the definition of the archipelago did not include the Batanes
group[, being] outside the boundaries of the Philippine archipelago as set forth in the Treaty of Paris.
In literal terms, therefore, the Batanes islands would come not under the Philippine archipelago but
under the phrase "all other territories belong to the Philippines."12 x x x (Emphasis added.)

From the foregoing discussions on the deliberations of the provisions on national territory, the
following conclusion is abundantly evident: the "Philippine archipelago" of the 1987 Constitution is
the same "Philippine archipelago" referred to in Art. I of the 1973 Constitution which in turn
corresponds to the territory defined and described in Art. 1 of the 1935 Constitution,13 which
pertinently reads:

Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris
concluded between the [US] and Spain on the tenth day of December, [1898], the limits of which are
set forth in Article III of said treaty, together with all the islands in the treaty concluded at
Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded between
the [US] and Great Britain x x x.

While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so
the nationalistic arguments went, being "a repulsive reminder of the indignity of our colonial past,"14 it
is at once clear that the Treaty of Paris had been utilized as key reference point in the definition of
the national territory.

On the other hand, the phrase "all other territories over which the Philippines has sovereignty or
jurisdiction," found in the 1987 Constitution, which replaced the deleted phrase "all territories
belonging to the Philippines by historic right or legal title"15 found in the 1973 Constitution, covers
areas linked to the Philippines with varying degrees of certainty.16 Under this category would fall: (a)
Batanes, which then 1971 Convention Delegate Eduardo Quintero, Chairperson of the Committee
on National Territory, described as belonging to the Philippines in all its history;17 (b) Sabah, over
which a formal claim had been filed, the so-called Freedomland (a group of islands known as
Spratleys); and (c) any other territory, over which the Philippines had filed a claim or might acquire in
the future through recognized modes of acquiring territory.18 As an author puts it, the deletion of the
words "by historic right or legal title" is not to be interpreted as precluding future claims to areas over
which the Philippines does not actually exercise sovereignty.19

Upon the foregoing perspective and going into specifics, petitioners would have RA 9522 stricken
down as unconstitutional for the reasons that it deprives the Philippines of what has long been
established as part and parcel of its national territory under the Treaty of Paris, as supplemented by
the aforementioned 1900 Treaty of Washington or, to the same effect, revises the definition on or
dismembers the national territory. Pushing their case, petitioners argue that the constitutional
definition of the national territory cannot be remade by a mere statutory act.20 As another point,
petitioners parlay the theory that the law in question virtually weakens the country’s territorial claim
over the Kalayaan Island Group (KIG) and Sabah, both of which come under the category of "other
territories" over the Philippines has sovereignty or jurisdiction. Petitioners would also assail the law
on grounds related to territorial sea lanes and internal waters transit passage by foreign vessels.

It is remarkable that petitioners could seriously argue that RA 9522 revises the Philippine territory as
defined in the Constitution, or worse, constitutes an abdication of territory.

It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the 1982
LOSC, which in turn seeks to regulate and establish an orderly sea use rights over maritime zones.
Or as the ponencia aptly states, RA 9522 aims to mark-out specific base points along the Philippine
coast from which baselines are drawn to serve as starting points to measure the breadth of the
territorial sea and maritime zones.21 The baselines are set to define the sea limits of a state, be it
coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to conform to the
prescriptions of UNCLOS III, RA 9522 did not surrender any territory, as petitioners would insist at
every turn, for UNCLOS III is concerned with setting order in the exercise of sea-use rights, not the
acquisition or cession of territory. And let it be noted that under UNCLOS III, it is recognized that
countries can have territories outside their baselines. Far from having a dismembering effect, then,
RA 9522 has in a limited but real sense increased the country’s maritime boundaries. How this
situation comes about was extensively explained by then Minister of State and head of the Philippine
delegation to UNCLOS III Arturo Tolentino in his sponsorship speech22on the concurrence of the
Batasang Pambansa with the LOSC:

xxxx

Then, we should consider, Mr. Speaker, that under the archipelagic principle, the whole area inside
the archipelagic base lines become a unified whole and the waters between the islands which
formerly were regarded by international law as open or international seas now become waters under
the complete sovereignty of the Filipino people. In this light there would be an additional area of
141,800 square nautical miles inside the base lines that will be recognized by international law as
Philippine waters, equivalent to 45,351,050 hectares. These gains in the waters of the sea,
45,211,225 hectares outside the base lines and 141,531,000 hectares inside the base lines, total
93,742,275 hectares as a total gain in the waters under Philippine jurisdiction.

From a pragmatic standpoint, therefore, the advantage to our country and people not only in terms of
the legal unification of land and waters of the archipelago in the light of international law, but also in
terms of the vast resources that will come under the dominion and jurisdiction of the Republic of the
Philippines, your Committee on Foreign Affairs does not hesitate to ask this august Body to concur
in the Convention by approving the resolution before us today.

May I say it was the unanimous view of delegations at the Conference on the Law of the Sea that
archipelagos are among the biggest gainers or beneficiaries under the Convention on the Law of the
Sea.

Lest it be overlooked, the constitutional provision on national territory, as couched, is broad enough
to encompass RA 9522’s definition of the archipelagic baselines. To reiterate, the laying down of
baselines is not a mode of acquiring or asserting ownership a territory over which a state exercises
sovereignty. They are drawn for the purpose of defining or establishing the maritime areas over
which a state can exercise sovereign rights. Baselines are used for fixing starting point from which
the territorial belt is measured seawards or from which the adjacent maritime waters are measured.
Thus, the territorial sea, a marginal belt of maritime waters, is measured from the baselines
extending twelve (12) nautical miles outward.23 Similarly, Art. 57 of the 1982 LOSC provides that the
Exclusive Economic Zone (EEZ) "shall not extend beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured."24 Most important to note is that the baselines
indicated under RA 9522 are derived from Art. 47 of the 1982 LOSC which was earlier quoted.

Since the 1987 Constitution’s definition of national territory does not delimit where the Philippine’s
baselines are located, it is up to the political branches of the government to supply the deficiency.
Through Congress, the Philippines has taken an official position regarding its baselines to the
international community through RA 3046,25as amended by RA 544626 and RA 9522. When the
Philippines deposited a copy of RA 9522 with the UN Secretary General, we effectively complied in
good faith with our obligation under the 1982 LOSC. A declaration by the Court of the
constitutionality of the law will complete the bona fides of the Philippines vis-a-vis the law of the sea
treaty.

It may be that baseline provisions of UNCLOS III, if strictly implemented, may have an imposing
impact on the signatory states’ jurisdiction and even their sovereignty. But this actuality, without
more, can hardly provide a justifying dimension to nullify the complying RA 9522. As held by the
Court in Bayan Muna v. Romulo,27 treaties and international agreements have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary acts, states may
decide to surrender or waive some aspects of their sovereignty. The usual underlying consideration
in this partial surrender may be the greater benefits derived from a pact or reciprocal undertaking.
On the premise that the Philippines has adopted the generally accepted principles of international
law as part of the law of the land, a portion of sovereignty may be waived without violating the
Constitution.

As a signatory of the 1982 LOSC, it behooves the Philippines to honor its obligations thereunder.
Pacta sunt servanda, a basic international law postulate that "every treaty in force is binding upon
the parties to it and must be performed by them in good faith."28 The exacting imperative of this
principle is such that a state may not invoke provisions in its constitution or its laws as an excuse for
failure to perform this duty."29

The allegation that Sabah has been surrendered by virtue of RA 9522, which supposedly repealed
the hereunder provision of RA 5446, is likewise unfounded.

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines
has acquired dominion and sovereignty.

There is nothing in RA 9522 indicating a clear intention to supersede Sec. 2 of RA 5446. Petitioners
obviously have read too much into RA 9522’s amendment on the baselines found in an older law.
Aside from setting the country’s baselines, RA 9522 is, in its Sec. 3, quite explicit in its reiteration of
the Philippines’ exercise of sovereignty, thus:

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and
jurisdiction over all portions of the national territory as defined in the Constitution and by provisions
of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, as amended.
To emphasize, baselines are used to measure the breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf. Having KIG and the Scarborough Shoal
outside Philippine baselines will not diminish our sovereignty over these areas. Art. 46 of UNCLOS
III in fact recognizes that an archipelagic state, such as the Philippines, is a state "constituted wholly
by one or more archipelagos and may include other islands." (emphasis supplied) The "other
islands" referred to in Art. 46 are doubtless islands not forming part of the archipelago but are
nevertheless part of the state’s territory.

The Philippines’ sovereignty over KIG and Scarborough Shoal are, thus, in no way diminished.
Consider: Other countries such as Malaysia and the United States have territories that are located
outside its baselines, yet there is no territorial question arising from this arrangement. 30

It may well be apropos to point out that the Senate version of the baseline bill that would become RA
9522 contained the following explanatory note: The law "reiterates our sovereignty over the
Kalayaan Group of Islands declared as part of the Philippine territory under Presidential Decree No.
1596. As part of the Philippine territory, they shall be considered as a ‘regime of islands’ under
Article 121 of the Convention."31 Thus, instead of being in the nature of a "treasonous surrender" that
petitioners have described it to be, RA 9522 even harmonizes our baseline laws with our
international agreements, without limiting our territory to those confined within the country’s
baselines.

Contrary to petitioners’ contention, the classification of KIG and the Scarborough Shoal as falling
under the Philippine’s regime of islands is not constitutionally objectionable. Such a classification
serves as compliance with LOSC and the Philippines’ assertion of sovereignty over KIG and
Scarborough Shoal. In setting the baseline in KIG and Scarborough Shoal, RA 9522 states that
these are areas "over which the Philippines likewise exercises sovereignty and jurisdiction." It is,
thus, not correct for petitioners to claim that the Philippines has lost 15,000 square nautical miles of
territorial waters upon making this classification. Having 15,000 square nautical miles of Philippine
waters outside of our baselines, to reiterate, does not translate to a surrender of these waters. The
Philippines maintains its assertion of ownership over territories outside of its baselines. Even China
views RA 9522 as an assertion of ownership, as seen in its Protest32 filed with the UN Secretary-
General upon the deposit of RA 9522.

We take judicial notice of the effective occupation of KIG by the Philippines. Petitioners even point
out that national and local elections are regularly held there. The classification of KIG as under a
"regime of islands" does not in any manner affect the Philippines’ consistent position with regard to
sovereignty over KIG. It does not affect the Philippines’ other acts of ownership such as occupation
or amend Presidential Decree No. 1596, which declared KIG as a municipality of Palawan.

The fact that the baselines of KIG and Scarborough Shoal have yet to be defined would not detract
to the constitutionality of the law in question. The resolution of the problem lies with the political
departments of the government.

All told, the concerns raised by the petitioners about the diminution or the virtual dismemberment of
the Philippine territory by the enactment of RA 9522 are, to me, not well grounded. To repeat,
UNCLOS III pertains to a law on the seas, not territory. As part of its Preamble,33 LOSC recognizes
"the desirability of establishing through this Convention, with due regard for the sovereignty of all
States, a legal order for the seas and oceans x x x."

This brings me to the matter of transit passage of foreign vessels through Philippine waters.
Apropos thereto, petitioners allege that RA 9522 violates the nuclear weapons-free policy under Sec.
8, in relation to Sec. 16, Art. II of the Constitution, and exposes the Philippines to marine pollution
hazards, since under the LOSC the Philippines supposedly must give to ships of all states the right
of innocent passage and the right of archipelagic sea-lane passage.

The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption and pursuit by the
Philippines of "a policy of freedom from nuclear weapons in its territory." On the other hand, the
succeeding Sec. l6 underscores the State’s firm commitment "to protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm and harmony of nature."
Following the allegations of petitioners, these twin provisions will supposedly be violated inasmuch
as RA 9522 accedes to the right of innocent passage and the right of archipelagic sea-lane passage
provided under the LOSC. Therefore, ships of all nations––be they nuclear-carrying warships or
neutral commercial vessels transporting goods––can assert the right to traverse the waters within
our islands.

A cursory reading of RA 9522 would belie petitioners’ posture. In context, RA 9522 simply seeks to
conform to our international agreement on the setting of baselines and provides nothing about the
designation of archipelagic sea-lane passage or the regulation of innocent passage within our
waters. Again, petitioners have read into the amendatory RA 9522 something not intended.

Indeed, the 1982 LOSC enumerates the rights and obligations of archipelagic party-states in terms
of transit under Arts. 51 to 53, which are explained below:

To safeguard, in explicit terms, the general balance struck by [Articles 51 and 52] between the need
for passage through the area (other than straits used for international navigation) and the
archipelagic state’s need for security, Article 53 gave the archipelagic state the right to regulate
where and how ships and aircraft pass through its territory by designating specific sea lanes. Rights
of passage through these archipelagic sea lanes are regarded as those of transit passage:

(1) An archipelagic State may designate sea lanes and air routes thereabove, suitable for
safe, continuous and expeditious passage of foreign ships and aircraft through or over its
archipelagic waters and the adjacent territorial sea.

(2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes
and air routes.

(3) Archipelagic sea lanes passage is the exercise in accordance with the present
Convention of the rights of navigation and overflight in the normal mode solely for the
purpose of continuous, expeditious and unobstructed transit between one part of the high
seas or an exclusive economic zone and another part of the high seas or an exclusive
economic zone.34

But owing to the geographic structure and physical features of the country, i.e., where it is
"essentially a body of water studded with islands, rather than islands with water around them,"35 the
Philippines has consistently maintained the conceptual unity of land and water as a necessary
element for territorial integrity,36 national security (which may be compromised by the presence of
warships and surveillance ships on waters between the islands),37and the preservation of its
maritime resources. As succinctly explained by Minister Arturo Tolentino, the essence of the
archipelagic concept is "the dominion and sovereignty of the archipelagic State within its baselines,
which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable
unity of the land and water domain."38 Indonesia, like the Philippines, in terms of geographic reality,
has expressed agreement with this interpretation of the archipelagic concept. So it was that in 1957,
the Indonesian Government issued the Djuanda Declaration, therein stating :

[H]istorically, the Indonesian archipelago has been an entity since time immemorial. In view of the
1avv phi 1

territorial entirety and of preserving the wealth of the Indonesian state, it is deemed necessary to
consider all waters between the islands and entire entity.

x x x On the ground of the above considerations, the Government states that all waters
around, between and connecting, the islands or parts of islands belonging to the Indonesian
archipelago irrespective of their width or dimension are natural appurtenances of its land
territory and therefore an integral part of the inland or national waters subject to the absolute
sovereignty of Indonesia.39 (Emphasis supplied.)

Hence, the Philippines maintains the sui generis character of our archipelagic waters as
equivalent to the internal waters of continental coastal states. In other words, the landward
waters embraced within the baselines determined by RA 9522, i.e., all waters around,
between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.40Accordingly, such waters are
not covered by the jurisdiction of the LOSC and cannot be subjected to the rights granted to
foreign states in archipelagic waters, e.g., the right of innocent passage,41 which is allowed
only in the territorial seas, or that area of the ocean comprising 12 miles from the baselines
of our archipelago; archipelagic sea-lane passage;42 over flight;43 and traditional fishing
rights.44

Our position that all waters within our baselines are internal waters, which are outside the
jurisdiction of the 1982 LOSC,45 was abundantly made clear by the Philippine Declaration at
the time of the signing of the LOSC on December 10, 1982. To reiterate, paragraphs 5, 6
and 7 of the Declaration state:

5. The Convention shall not be construed as amending in any manner any pertinent laws and
Presidential decrees of Proclamation of the republic of the Philippines; the Government x x x
maintains and reserves the right and authority to make any amendments to such laws,
decrees or proclamations pursuant to the provisions of the Philippine Constitution;

6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify
or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and
do not deprive it of authority to enact legislation to protect its sovereignty, independence and
security;

7. The concept of archipelagic waters is similar to the concept of internal waters under the
Constitution of the Philippines and removes straits connecting this water with the economic
zone or high seas from the rights of foreign vessels to transit passage for international
navigation. (Emphasis supplied.)46

More importantly, by the ratification of the 1987 Constitution on February 2, 1987, the integrity of the
Philippine state as comprising both water and land was strengthened by the proviso in its first article,
viz: "The waters around, between, and connecting the islands of the [Philippine] archipelago,
regardless of their breadth and dimensions, form part of the internal waters of the Philippines.
(emphasis supplied)

In effect, contrary to petitioners’ allegations, the Philippines’ ratification of the 1982 LOSC did not
matter-of-factly open our internal waters to passage by foreign ships, either in the concept of
innocent passage or archipelagic sea-lane passage, in exchange for the international community’s
recognition of the Philippines as an archipelagic state. The Filipino people, by ratifying the 1987
Constitution, veritably rejected the quid pro quo petitioners take as being subsumed in that treaty.

Harmonized with the Declaration and the Constitution, the designation of baselines made in RA
9522 likewise designates our internal waters, through which passage by foreign ships is not a right,
but may be granted by the Philippines to foreign states but only as a dissolvable privilege.

In view of the foregoing, I vote to DISMISS the Petition.

PRESBITERO J. VELASCO, JR.

Associate Justice

Footnotes

1League of Cities of the Phil. v. COMELEC, G.R. No. 176951, December 21, 2009, 608
SCRA 636.

2Under Art. VIII, Sec. 5 of the Constitution, the Supreme Court is empowered to review,
revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may
provide, final judgments and orders of lower courts in: all cases in which the Constitutionality
or validity of any treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question. (Emphasis supplied.)

3 December 10, 1982.

4 May 8, 1984.

5Available on
<http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm> (visited
July 28, 2011).

6 UNCLOS, Art. 47, December 10, 1982.

7J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines A Commentary 57
(2003).

8 See J. Batongbacal, The Metes and Bounds of the Philippine National Territory, An
International Law and Policy Perspective, Supreme Court of the Philippines, Philippine
Judicial Academy Third Distinguished Lecture, Far Eastern University, June 27, 2008.

9 J. Bernas, supra note 7, at 10.

10 Citing Report No. 01 of the Committee on National Territory.

11 Citing Report No. 02 of the Committee on National Territory.

12 J. Bernas, supra note 7, at 11-14.

13 Id. at 14.

14 Id. at 9; citing Speech, Session February 15, 1972, of Delegates Amanio Sorongon, et al.

15 The history of this deleted phrase goes back to the last clause of Art. I of the 1935
Constitution which included "all territory over which the present Government of the Philippine
Islands exercises jurisdiction. See J. Bernas, supra note 7, at 14.

16 J. Bernas, supra note 7, at 16.

17 Id.; citing deliberations of the February 17, 1972 Session.

18 Id.

19 De Leon, Philippine Constitution 62 (2011).

20 Petition, pp. 4-5.

21Art. 48 of UNCLOS III provides that the breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall be measured from the
archipelagic baseline drawn in accordance with Art. 47.

22R.P. Lotilla, The Philippine National Territory: A Collection of Related Documents 513-517
(1995); citing Batasang Pambansa, Acts and Resolution, 6th Regular Session.

23 J. Bernas, supra note 7, at 22.

24 UNCLOS III, Art. 57.

25 June 17, 1961.

26 September 18, 1968.

27G.R. No. 159618, February 1, 2011; citing Tañada v. Angara, G.R. No. 118295, May 2,
1997, 272 SCRA 18.

28 Art. 26, Vienna Convention on the Law of Treaties, 1969.

Art. 13, Declaration of Rights and Duties of States Adopted by the International Law
29

Commission, 1949.

30 See J. Batongbacal, supra note 8.

31 Id.

32 The Protest reads in part: "The above-mentioned Philippine Act illegally claims Huangyan
Island (referred as "Bajo de Masinloc" in the Act) of China as "areas over which the
Philippines likewise exercises sovereignty and jurisdiction." The Chinese Government
hereby reiterates that Huangyan Island and Nansha Islands have been part of the territory of
China since ancient time. The People’s Republic of China has indisputable sovereignty over
Huangyan Island and Nansha Islands and their surrounding areas. Any claim to territorial
sovereignty over Huangyan Island and Nansha Islands by any other State is, therefore, null
and void." Available on

<http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/
communicationsredeposit/mzn69_2009_chn.pdf> (visited August 9, 2011).

33 Supra note 5.

C. Ku, The Archipelagic States Concept and Regional Stability in Southeast Asia, Case W.
34

Res. J. Int’l L., Vol. 23:463, 469; citing 1958 U.N. Conference on the Law of the Sea,
Summary Records 44, Doc. A/Conf. 13/42.

35 Id.

Hiran W. Jayewardene, The Regime of Islands in International Law, AD Dordrecht:

36

Martinus Nijhoff Publishers, p. 103 (1990).

37 Id. at 112.

UNCLOS III Off. Rec., Vol. II, 264, par. 65, and also pars. 61-62 and 66; cited in B.
38

Kwiatkowska, "The Archipelagic Regime in Practice in the Philippines and Indonesia –

Making or Breaking International Law?", International Journal of Estuarine and Coastal Law,
Vol. 6, No. 1, pp. 6-7.

39 4 Whiteman D.G., International Law 284 (1965); quoted in C. Ku, supra note 34, at 470.

40 1987 Constitution, Art. I.

41 LOSC, Arts. 52 and 54.

42 LOSC, Art. 53, par. 2.

43 LOSC, Art. 53, par. 2.

44 LOSC, Art. 51.

45 LOSC, Art. 8, par. 2.

46Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, "The United Nations Convention on
the Law of the Sea: Implications of Philippine Ratification," 9 Philippine Yil (1983) 48-9 and
61-2; and Congress of the Philippines, First Regular Session, Senate, S. No. 232,
Explanatory Note and An Act to Repeal Section 2 (concerning TS baselines around Sabah
disputed with Malaysia) of the 1968 Act No. 5446.
G. R. No. 107764 October 4, 2002

EDNA COLLADO, BERNARDINA TAWAS, JORETO C. TORRES,

JOSE AMO, SERGIO L. MONTEALEGRE, VICENTE C. TORRES,
JOSEPH L. NUÑEZ, GLORIA SERRANO, DANILO FABREGAS, FERNANDO T. TORRES,
LUZ G. TUBUNGBANUA, CARIDAD T. TUTANA, JOSE C. TORRES, JR.,
IMELDA CAYLALUAD, ROSALIE TUTANA, NORMA ASTORIAS, MYRNA M. LANCION,
NORBERTO CAMILOTE, CECILIA MACARANAS, PEDRO BRIONES,
REMEDIOS BANTIGUE, DANTE L. MONTEALEGRE, AIDA T. GADON, ARMANDO T. TORRES
and FIDELITO ECO, petitioners,
vs.
COURT OF APPEALS and REPUBLIC OF THE PHILIPPINES, thru the Director of
Lands, respondents,
BOCKASANJO ISF AWARDEES ASSOCIATION, INC.,
LITA MENDOZA, MORADO PREFIDIGNO, TERESITA CRUZ
and CALOMA MOISES, respondents/intervernors.

DECISION

CARPIO, J.:

The Case

This Petition1 seeks to set aside the Decision of the Court of Appeals,2 dated June 22, 1992, in CA-
G.R. SP No. 25597, which declared null and void the Decision3 dated January 30, 1991 of the
Regional Trial Court of Antipolo, Rizal, Branch 71, in LRC No. 269-A, LRC Rec. No. N-59179,
confirming the imperfect title of petitioners over a parcel of land.

The Facts

On April 25, 1985, petitioner Edna T. Collado filed with the land registration court an application for
registration of a parcel of land with an approximate area of 1,200,766 square meters or 120.0766
hectares ("Lot" for brevity). The Lot is situated in Barangay San Isidro (formerly known as Boso-
boso), Antipolo, Rizal, and covered by Survey Plan Psu-162620. Attached to the application was the
technical description of the Lot as Lot Psu-162620 signed by Robert C. Pangyarihan, Officer-in-
Charge of the Survey Division, Bureau of Lands, which stated, "[t]his survey is inside IN-12
Mariquina Watershed." On March 24, 1986, petitioner Edna T. Collado filed an Amended Application
to include additional co-applicants.4 Subsequently, more applicants joined (collectively referred to as
"petitioners" for brevity).5

The Republic of the Philippines, through the Solicitor General, and the Municipality of Antipolo,
through its Municipal Attorney and the Provincial Fiscal of Rizal, filed oppositions to petitioners’
application. In due course, the land registration court issued an order of general default against the
whole world with the exception of the oppositors.

Petitioners alleged that they have occupied the Lot since time immemorial. Their possession has
been open, public, notorious and in the concept of owners. The Lot was surveyed in the name of
Sesinando Leyva, one of their predecessors-in-interest, as early as March 22, 1902. Petitioners
declared the Lot for taxation purposes and paid all the corresponding real estate taxes. According to
them, there are now twenty-five co-owners in pro-indiviso shares of five hectares each. During the
hearings, petitioners submitted evidence to prove that there have been nine transfers of rights
among them and their predecessors-in-interest, as follows:
 "1. SESINANDO LEYVA was the earliest known predecessor-in-interest of the Applicants
who was in actual, open, notorious and continuous possession of the property in the concept
of owner. He had the property surveyed in his name on 22 March 1902 (Exhibit "W" and "W-
1" testimonies of J. Torres on 16 December 1987 and Mariano Leyva on 29 December
1987).

2. DIOSDADO LEYVA, is the son of Sesinando Leyva, who inherited the property. He had
the property resurveyed in his name on May 21-28, 1928 (Exhibit "X" and "X-1"; testimony of
Mariano Leyva, a son of Diosdado Leyva).

3. GREGORIO CAMANTIQUE bought the property from Diosdado Leyva before the
Japanese Occupation of the Philippines during World War II. He owned and possessed the
property until 1958. He declared the property for tax purposes, the latest of which was under
Tax Declaration No. 7182 issued on 3 February 1957 (Exhibit "I" and testimony of Mariano
Leyva, supra).

4. ANGELINA REYNOSO, bought the property from Gregorio Camantique by virtue of a

Deed of Sale on 3 February 1958 (Exhibit "H"). During the ownership of the property by
Angelina Reynoso, Mariano Leyva the grandson of Sesinando Leyva, the previous owner,
attended to the farm. (Testimony of Mariano Leyva, supra). Angelina Reynoso declared the
property in her name under Tax Declaration No. 7189 in 4 February 1958, under Tax
Declaration No. 8775 on 3 August 1965, under Tax Declaration No. 16945 on 15 December
1975, and under Tax Declaration No. 03-06145 on 25 June 1978.

5. MYRNA TORRES bought the property from Angelina Reynoso on 16 October 1982
through a Deed of Sale (Exhibit "G").

6. EDNA COLLADO bought the property from Myrna Torres in a Deed of Sale dated 28 April
1984 (Exhibit "P-1" to "P-3").

7. Additional owners BERNARDINA TAWAS, JORETO TORRES, JOSE AMO, VICENTE

TORRES and SERGIO MONTEALEGRE who bought portions of the property from Edna
Collado through a Deed of Sale on 6 November 1985 (Exhibit "Q" to "Q-3").

8. And more additional Owners JOSEPH NUNEZ, DIOSDADO ARENOS, DANILO

FABREGAS, FERNANDO TORRES, LUZ TUBUNGBANUA, CARIDAD TUTANA, JOSE
TORRES JR., RODRIGO TUTANA, ROSALIE TUTANA, NORMA ASTORIAS, MYRNA
LANCION, CHONA MARCIANO, CECILIA MACARANAS, PEDRO BRIONES, REMEDIOS
BANTIQUE, DANTE MONTEALEGRE, ARMANDO TORRES, AIDA GADON and AMELIA
M. MALAPAD bought portions of the property in a Deed of Sale on 12 May 1986 (Exhibit "S"
to "S-3").

9. Co-owners DIOSDADO ARENOS, RODRIGO TUTANA, CHONA MARCIANO and

AMELIA MALAPAD jointly sold their shares to new OWNERS GLORIA R. SERRANO,
IMELDA CAYLALUAD, NORBERTO CAMILOTE and FIDELITO ECO through a Deed of
Sale dated 18 January 1987 (Exhibit "T" to "T-9")."6

During the hearing on January 9, 1991, only the assistant provincial prosecutor appeared without the
Solicitor General. For failure of the oppositors to present their evidence, the land registration court
issued an order considering the case submitted for decision based on the evidence of the
petitioners. The court later set aside the order and reset the hearing to January 14, 1991 for the
presentation of the evidence of the oppositors. On this date, counsel for oppositors failed to appear
again despite due notice. Hence, the court again issued an order submitting the case for decision
based on the evidence of the petitioners.

The Trial Court’s Ruling

After appraisal of the evidence submitted by petitioners, the land registration court held that
petitioners had adduced sufficient evidence to establish their registrable rights over the Lot.
Accordingly, the court rendered a decision confirming the imperfect title of petitioners. We quote the
pertinent portions of the court’s decision, as follows:

"From the evidence presented, the Court finds that from the testimony of the witnesses presented by
the Applicants, the property applied for is in actual, open, public and notorious possession by the
applicants and their predecessor-in-interest since time immemorial and said possession had been
testified to by witnesses Jimmy Torres, Mariano Leyva, Sergio Montealegre, Jose Amo and one
Chona who were all cross-examined by Counsel for Oppositor Republic of the Philippines.

Evidence was likewise presented that said property was declared for taxation purposes in the names
of the previous owners and the corresponding taxes were paid by the Applicants and the previous
owners and said property was planted to fruit bearing trees; portions to palay and portions used for
grazing purposes.

To the mind of the Court, Applicants have presented sufficient evidence to establish registrable title
over said property applied for by them.

On the claim that the property applied for is within the Marikina Watershed, the Court can only add
that all Presidential Proclamations like the Proclamation setting aside the Marikina Watershed are
subject to "private rights."

In the case of Municipality of Santiago vs. Court of Appeals, 120 SCRA 734, 1983 "private rights" is
proof of acquisition through (sic) among means of acquisition of public lands.

In the case of Director of Lands vs. Reyes, 68 SCRA 193-195, by "private rights" means that
applicant should show clear and convincing evidence that the property in question was acquired by
applicants or their ancestors either by composition title from the Spanish government or by
Possessory Information title, or any other means for the acquisition of public lands xxx"
(underscoring supplied).

The Court believes that from the evidence presented as above stated, Applicants have acquired
private rights to which the Presidential Proclamation setting aside the Marikina Watershed should be
subject to such private rights.

At any rate, the Court notes that evidence was presented by the applicants that as per Certification
issued by the Bureau of Forest Development dated March 18, 1980, the area applied for was verified
to be within the area excluded from the operation of the Marikina Watershed Lands Executive Order
No. 33 dated July 26, 1904 per Proclamation No. 1283 promulgated on June 21, 1974 which
established the Boso-boso Town Site Reservation, amended by Proclamation No. 1637 dated April
18, 1977 known as the Lungsod Silangan Townsite Reservation. (Exhibit "K")."7

In a motion dated April 5, 1991, received by the Solicitor General on April 6, 1991, petitioners
alleged that the decision dated January 30, 1991 confirming their title had become final after the
Solicitor General received a copy of the decision on February 18, 1991. Petitioners prayed that the
land registration court order the Land Registration Authority to issue the necessary decree in their
favor over the Lot.

On April 11, 1991, the Solicitor General inquired from the Provincial Prosecutor of Rizal whether the
land registration court had already rendered a decision and if so, whether the Provincial Prosecutor
would recommend an appeal. However, the Provincial Prosecutor failed to answer the query.

According to the Solicitor General, he received on April 23, 1991 a copy of the land registration
court’s decision dated January 30, 1991, and not on February 18, 1991 as alleged by petitioners in
their motion.

In the meantime, on May 7, 1991, the land registration court issued an order directing the Land
Regulation Authority to issue the corresponding decree of registration in favor of the petitioners.

On August 6, 1991, the Solicitor General filed with the Court of Appeals a Petition for Annulment of
Judgment pursuant to Section 9(2) of BP Blg. 129 on the ground that there had been no clear
showing that the Lot had been previously classified as alienable and disposable making it subject to
private appropriation.

On November 29, 1991, Bockasanjo ISF Awardees Association, Inc., an association of holders of
certificates of stewardship issued by the Department of Environment and Natural Resources
("DENR" for brevity) under its Integrated Social Forestry Program ("ISF" for brevity), filed with the
Court of Appeals a Motion for Leave to Intervene and to Admit Petition-In-Intervention. They likewise
opposed the registration and asserted that the Lot, which is situated inside the Marikina Watershed
Reservation, is inalienable. They claimed that they are the actual occupants of the Lot pursuant to
the certificates of stewardship issued by the DENR under the ISF for tree planting purposes.

The Court of Appeals granted the motion to intervene verbally during the preliminary conference
held on April 6, 1992. During the preliminary conference, all the parties as represented by their
respective counsels agreed that the only issue for resolution was whether the Lot in question is part
of the public domain.8

The Court of Appeals’ Ruling

In a decision dated June 22, 1992, the Court of Appeals granted the petition and declared null and
void the decision dated January 30, 1991 of the land registration court. The Court of Appeals
explained thus:

"Under the Regalian Doctrine, which is enshrined in the 1935 (Art. XIII, Sec. 1), 1973 (Art. XIV, Sec.
8), and 1987 Constitution (Art. XII, Sec. 2), all lands of the public domain belong to the State. An
applicant, like the private respondents herein, for registration of a parcel of land bears the burden of
overcoming the presumption that the land sought to be registered forms part of the public domain
(Director of Lands vs. Aquino, 192 SCRA 296).

A positive Act of government is needed to declassify a public land and to convert it into alienable or
disposable land for agricultural or other purposes (Republic vs. Bacas, 176 SCRA 376).

In the case at bar, the private respondents failed to present any evidence whatsoever that the land
applied for as described in Psu-162620 has been segregated from the bulk of the public domain and
declared by competent authority to be alienable and disposable. Worse, the technical description of
Psu-162620 signed by Robert C. Pangyarihan, Officer-in-Charge, Survey Division, Bureau of Lands,
which was attached to the application of private respondents, categorically stated that "This survey is
inside IN-12 Mariquina Watershed.""

That the land in question is within the Marikina Watershed Reservation is confirmed by the
Administrator of the National Land Titles and Deeds in a Report, dated March 2, 1988, submitted to
the respondent Court in LR Case No. 269-A. These documents readily and effectively negate the
allegation in private respondent Collado’s application that "said parcel of land known as Psu-162620
is not covered by any form of title, nor any public land application and are not within any government
reservation (Par. 8, Application; Emphasis supplied). The respondent court could not have missed
the import of these vital documents which are binding upon the courts inasmuch as it is the exclusive
prerogative of the Executive Department to classify public lands. They should have forewarned the
respondent judge from assuming jurisdiction over the case.

"x x x inasmuch as the said properties applied for by petitioners are part of the public domain, it is
the Director of Lands who has jurisdiction in the disposition of the same (subject to the approval of
the Secretary of Natural Resources and Environment), and not the courts. x x x Even assuming that
petitioners did have the said properties surveyed even before the same was declared to be part of
the Busol Forest Reservation, the fact remains that it was so converted into a forest reservation, thus
it is with more reason that this action must fail. Forest lands are inalienable and possession thereof,
no matter how long, cannot convert the same into private property. And courts are without
jurisdiction to adjudicate lands within the forest zone. (Heirs of Gumangan vs. Court of Appeals. 172
SCRA 563; Emphasis supplied).

Needless to say, a final judgment may be annulled on the ground of lack of jurisdiction, fraud or that
it is contrary to law (Panlilio vs. Garcia, 119 SCRA 387, 391) and a decision rendered without
jurisdiction is a total nullity and may be struck down at any time (Suarez vs. Court of Appeals, 186
SCRA 339)."9

Hence, the instant petition.

The Issues

The issues raised by petitioners are restated as follows:

WHETHER THE COURT OF APPEALS ERRED OR GRAVELY ABUSED ITS DISCRETION IN

REVERSING THE DECISION OF THE TRIAL COURT GRANTING THE APPLICATION OF THE
PETITIONERS FOR CONFIRMATION OF TITLE;

II

WHETHER THE COURT OF APPEALS ERRED OR GRAVELY ABUSED ITS DISCRETION IN

GIVING DUE COURSE TO THE PETITION FOR ANNULMENT OF JUDGMENT FILED BY THE
REPUBLIC LONG AFTER THE DECISION OF THE TRIAL COURT HAD BECOME FINAL;

III

WHETHER THE COURT OF APPEALS ERRED OR GRAVELY ABUSED ITS DISCRETION IN

GIVING DUE COURSE TO THE INTERVENORS’ PETITION FOR INTERVENTION WHICH WAS
FILED OUT OF TIME OR LONG AFTER THE DECISION OF THE TRIAL COURT HAD BECOME
FINAL.

The Court’s Ruling

The petition is bereft of merit.

First Issue: whether petitioners have registrable title over the Lot.

There is no dispute that Executive Order No. 33 ("EO 33" for brevity) dated July 26,
190410 established the Marikina Watershed Reservation ("MWR" for brevity) situated in the
Municipality of Antipolo, Rizal. Petitioners even concede that the Lot, described as Lot Psu-162620,
is inside the technical, literal description of the MWR. However, the main thrust of petitioners’ claim
over the Lot is that "all Presidential proclamations like the proclamation setting aside the Marikina
Watershed Reservation are subject to private rights." They point out that EO 33 contains a saving
clause that the reservations are "subject to existing private rights, if any there be." Petitioners
contend that their claim of ownership goes all the way back to 1902, when their known predecessor-
in-interest, Sesinando Leyva, laid claim and ownership over the Lot. They claim that the presumption
of law then prevailing under the Philippine Bill of 1902 and Public Land Act No. 926 was that the land
possessed and claimed by individuals as their own are agricultural lands and therefore alienable and
disposable. They conclude that private rights were vested on Sesinando Leyva before the issuance
of EO 33, thus excluding the Lot from the Marikina Watershed Reservation.

Petitioners’ arguments find no basis in law.

The Regalian Doctrine: An Overview

Under the Regalian Doctrine, all lands not otherwise appearing to be clearly within private ownership
are presumed to belong to the State.11 The Spaniards first introduced the doctrine to the Philippines
through the Laws of the Indies and the Royal Cedulas, specifically, Law 14, Title 12, Book 4 of the
Novisima Recopilacion de Leyes de las Indias12which laid the foundation that "all lands that were not
acquired from the Government, either by purchase or by grant, belong to the public domain."13 Upon
the Spanish conquest of the Philippines, ownership of all "lands, territories and possessions" in the
Philippines passed to the Spanish Crown.14

The Laws of the Indies were followed by the Ley Hipotecaria or the Mortgage Law of 1893. The
Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as
possessory claims. The Royal Decree of 1894 or the "Maura Law" partly amended the Mortgage
Law as well as the Law of the Indies. The Maura Law was the last Spanish land law promulgated in
the Philippines. It required the "adjustment" or registration of all agricultural lands, otherwise the
lands would revert to the state.15

Four years later, Spain ceded to the government of the United States all rights, interests and claims
over the national territory of the Philippine Islands through the Treaty of Paris of December 10, 1898.
In 1903, the United States colonial government, through the Philippine Commission, passed Act No.
926, the first Public Land Act, which was described as follows:

"Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the Philippine
Bill of 1902. The law governed the disposition of lands of the public domain. It prescribed rules and
regulations for the homesteading, selling and leasing of portions of the public domain of the
Philippine Islands, and prescribed the terms and conditions to enable persons to perfect their titles to
public lands in the Islands. It also provided for the "issuance of patents to certain native settlers upon
public lands," for the establishment of town sites and sale of lots therein, for the completion of
imperfect titles, and for the cancellation or confirmation of Spanish concessions and grants in the
Islands." In short, the Public Land Act operated on the assumption that title to public lands in the
Philippine Islands remained in the government; and that the government’s title to public land sprung
from the Treaty of Paris and other subsequent treaties between Spain and the United States. The
term "public land" referred to all lands of the public domain whose title still remained in the
government and are thrown open to private appropriation and settlement, and excluded the
patrimonial property of the government and the friar lands."16

Thus, it is plain error for petitioners to argue that under the Philippine Bill of 1902 and Public Land
Act No. 926, mere possession by private individuals of lands creates the legal presumption that the
lands are alienable and disposable.

Act 2874, the second Public Land Act, superseded Act No. 926 in 1919. After the passage of the
1935 Constitution, Commonwealth Act No. 141 ("CA 141" for brevity) amended Act 2874 in 1936.
CA 141, as amended, remains to this day as the existing general law governing the classification
and disposition of lands of the public domain other than timber and mineral lands.17

In the meantime, in order to establish a system of registration by which recorded title becomes
absolute, indefeasible and imprescriptible, the legislature passed Act 496, otherwise known as the
Land Registration Act, which took effect on February 1, 1903. Act 496 placed all registered lands in
the Philippines under the Torrens system.18 The Torrens system requires the government to issue a
certificate of title stating that the person named in the title is the owner of the property described
therein, subject to liens and encumbrances annotated on the title or reserved by law. The certificate
of title is indefeasible and imprescriptible and all claims to the parcel of land are quieted upon
issuance of the certificate.19 PD 1529, known as the Property Registration Decree enacted on June
11, 1978,20 amended and updated Act 496.

The 1935, 1973, 1987 Philippine Constitutions

The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however, the
state, in lieu of the King, as the owner of all lands and waters of the public domain.21 Justice Reynato
S. Puno, in his separate opinion in Cruz vs. Secretary of Environment and Natural
Resources,22 explained thus:

"One of the fixed and dominating objectives of the 1935 Constitutional Convention was the
nationalization and conservation of the natural resources of the country. There was an overwhelming
sentiment in the Convention in favor of the principle of state ownership of natural resources and the
adoption of the Regalian doctrine. State ownership of natural resources was seen as a necessary
starting point to secure recognition of the state’s power to control their disposition, exploitation,
development, or utilization. The delegates to the Constitutional Convention very well knew that the
concept of State ownership of land and natural resources was introduced by the Spaniards,
however, they were not certain whether it was continued and applied by the Americans. To remove
all doubts, the Convention approved the provision in the Constitution affirming the Regalian
doctrine."

Thus, Section 1, Article XIII23 of the 1935 Constitution, on "Conservation and Utilization of Natural
Resources" barred the alienation of all natural resources except public agricultural lands, which were
the only natural resources the State could alienate. The 1973 Constitution reiterated the Regalian
doctrine in Section 8, Article XIV24 on the "National Economy and the Patrimony of the Nation". The
1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII25 on "National Economy
and Patrimony".
Both the 1935 and 1973 Constitutions prohibited the alienation of all natural resources except
agricultural lands of the public domain. The 1987 Constitution readopted this policy. Indeed, all lands
of the public domain as well as all natural resources enumerated in the Philippine Constitution
belong to the State.

Watershed Reservation is a Natural Resource

The term "natural resource" includes "not only timber, gas, oil coal, minerals, lakes, and submerged
lands, but also, features which supply a human need and contribute to the health, welfare, and
benefit of a community, and are essential to the well-being thereof and proper enjoyment of property
devoted to park and recreational purposes."26

In Sta. Rosa Realty Development Corp. vs. Court of Appeals, et al.,27 the Court had occasion to
discourse on watershed areas. The Court resolved the issue of whether the parcel of land which the
Department of Environment and Natural Resources had assessed to be a watershed area is exempt
from the coverage of RA No. 6657 or the Comprehensive Agrarian Reform Law ("CARL" for
brevity).28 The Court defined watershed as "an area drained by a river and its tributaries and
enclosed by a boundary or divide which separates it from adjacent watersheds." However, the Court
also recognized that:

"The definition does not exactly depict the complexities of a watershed. The most important product
of a watershed is water which is one of the most important human necessit(ies). The protection of
watershed ensures an adequate supply of water for future generations and the control of flashfloods
that not only damage property but also cause loss of lives. Protection of watersheds is an
"intergenerational" responsibility that needs to be answered now."

Article 67 of the Water Code of the Philippines (PD 1067) provides:

"Art. 67. Any watershed or any area of land adjacent to any surface water or overlying any ground
water may be declared by the Department of Natural Resources as a protected area. Rules and
Regulations may be promulgated by such Department to prohibit or control such activities by the
owners or occupants thereof within the protected area which may damage or cause the deterioration
of the surface water or ground water or interfere with the investigation, use, control, protection,
management or administration of such waters."

The Court in Sta. Rosa Realty also recognized the need to protect watershed areas and took note of
the report of the Ecosystems Research and Development Bureau (ERDB), a research arm of the
DENR, regarding the environmental assessment of the Casile and Kabanga-an river watersheds
involved in that case. That report concluded as follows:

"The Casile barangay covered by CLOA in question is situated in the heartland of both watersheds.
Considering the barangays proximity to the Matangtubig waterworks, the activities of the farmers
which are in conflict with proper soil and water conservation practices jeopardize and endanger the
vital waterworks. Degradation of the land would have double edge detrimental effects. On the Casile
side this would mean direct siltation of the Mangumit river which drains to the water impounding
reservoir below. On the Kabanga-an side, this would mean destruction of forest covers which acts as
recharged areas of the Matangtubig springs. Considering that the people have little if no direct
interest in the protection of the Matangtubig structures they couldn’t care less even if it would be
destroyed.
The Casile and Kabanga-an watersheds can be considered a most vital life support system to
thousands of inhabitants directly and indirectly affected by it. From these watersheds come the
natural God-given precious resource – water. x x x

Clearing and tilling of the lands are totally inconsistent with sound watershed management. More so,
the introduction of earth disturbing activities like road building and erection of permanent
infrastructures. Unless the pernicious agricultural activities of the Casile farmers are immediately
stopped, it would not be long before these watersheds would cease to be of value. The impact of
watershed degradation threatens the livelihood of thousands of people dependent upon it. Toward
this, we hope that an acceptable comprehensive watershed development policy and program be
immediately formulated and implemented before the irreversible damage finally happens."

The Court remanded the case to the Department of Agriculture and Adjudication Board or DARAB to
re-evaluate and determine the nature of the parcels of land involved in order to resolve the issue of
its coverage by the CARL.

Sta. Rosa Realty gives us a glimpse of the dangers posed by the misuse of natural resources such
as watershed reservations which are akin to forest zones. Population growth and industrialization
have taken a heavy toll on the environment. Environmental degradation from unchecked human
activities could wreak havoc on the lives of present and future generations. Hence, by constitutional
fiat, natural resources remain to this day inalienable properties of the State.

Viewed under this legal and factual backdrop, did petitioners acquire, as they vigorously argue,
private rights over the parcel of land prior to the issuance of EO 33 segregating the same as a
watershed reservation?

The answer is in the negative.

First. An applicant for confirmation of imperfect title bears the burden of proving that he meets the
requirements of Section 48 of CA 141, as amended. He must overcome the presumption that the
land he is applying for is part of the public domain and that he has an interest therein sufficient to
warrant registration in his name arising from an imperfect title. An imperfect title may have been
derived from old Spanish grants such as a titulo real or royal grant, a concession especial or special
grant, a composicion con el estado or adjustment title, or a titulo de compra or title through
purchase.29 Or, that he has had continuous, open and notorious possession and occupation of
agricultural lands of the public domain under a bona fide claim of ownership for at least thirty years
preceding the filing of his application as provided by Section 48 (b) CA 141.

Originally, Section 48(b) of CA 141 provided for possession and occupation of lands of the public
domain since July 26, 1894. This was superseded by RA 1942 which provided for a simple thirty-
year prescriptive period of occupation by an applicant for judicial confirmation of an imperfect title.
The same, however, has already been amended by Presidential Decree No. 1073, approved on
January 25, 1977, the law prevailing at the time petitioners’ application for registration was filed on
April 25, 1985.30 As amended, Section 48 (b) now reads:

"(b) Those who by themselves or through their predecessors-in-interest have been in open,
continuous, exclusive and notorious possession and occupation of agricultural lands of the public
domain, under a bona fide claim of acquisition or ownership, for at least thirty years immediately
preceding the filing of the application for confirmation of title, except when prevented by wars or
force majeure. Those shall be conclusively presumed to have performed all the conditions essential
to a Government grant and shall be entitled to a certificate of title under the provisions of this
chapter."
Interpreting Section 48 (b) of CA 141, the Court stated that the Public Land Act requires that the
applicant must prove the following:

"(a) that the land is alienable public land and (b) that his open, continuous, exclusive and notorious
possession and occupation of the same must either be since time immemorial or for the period
prescribed in the Public Land Act. When the conditions set by law are complied with, the possessor
of the land, by operation of law, acquires a right to a grant, a government grant, without the
necessity of a certificate of title being issued."31

Petitioners do not claim to have documentary title over the Lot. Their right to register the Lot is
predicated mainly upon continuous possession since 1902.

Clearly, petitioners were unable to acquire a valid and enforceable right or title because of the failure
to complete the required period of possession, whether under the original Section 48 (b) of CA 141
prior to the issuance of EO 33, or under the amendment by RA 1942 and PD 1073.

There is no proof that prior to the issuance of EO 33 in 1904, petitioners had acquired ownership or
title to the Lot either by deed or by any other mode of acquisition from the State, as for instance by
acquisitive prescription. As of 1904, Sesinando Leyva had only been in possession for two years.
Verily, petitioners have not possessed the parcel of land in the manner and for the number of years
required by law for the confirmation of imperfect title.

Second, assuming that the Lot was alienable and disposable land prior to the issuance of EO 33 in
1904, EO 33 reserved the Lot as a watershed. Since then, the Lot became non-disposable and
inalienable public land. At the time petitioners filed their application on April 25, 1985, the Lot has
been reserved as a watershed under EO 33 for 81 years prior to the filing of petitioners’ application.

The period of occupancy after the issuance of EO 33 in 1904 could no longer be counted because
as a watershed reservation, the Lot was no longer susceptible of occupancy, disposition,
conveyance or alienation. Section 48 (b) of CA 141, as amended, applies exclusively to alienable
and disposable public agricultural land. Forest lands, including watershed reservations, are
excluded. It is axiomatic that the possession of forest lands or other inalienable public lands cannot
ripen into private ownership. In Municipality of Santiago, Isabela vs. Court of Appeals,32 the Court
declared that inalienable public lands -

"x x x cannot be acquired by acquisitive prescription. Prescription, both acquisitive and extinctive,
does not run against the State.

‘The possession of public land, however long the period may have extended, never confers title
thereto upon the possessor because the statute of limitations with regard to public land does not
operate against the State, unless the occupant can prove possession and occupation of the same
under claim of ownership for the required number of years to constitute a grant from the State.’ "

Third, Gordula vs. Court of Appeals33 is in point. In Gordula, petitioners did not contest the nature of
the land. They admitted that the land lies in the heart of the Caliraya-Lumot River Forest Reserve,
which Proclamation No. 573 classified as inalienable. The petitioners in Gordula contended,
however, that Proclamation No. 573 itself recognizes private rights of landowners prior to the
reservation. They claim to have established their private rights to the subject land. The Court ruled:

"We do not agree. No public land can be acquired by private persons without any grant, express or
implied from the government; it is indispensable that there be a showing of a title from the state. The
facts show that petitioner Gordula did not acquire title to the subject land prior to its reservation
under Proclamation No. 573. He filed his application for free patent only in January, 1973, more than
three (3) years after the issuance of Proclamation No. 573 in June, 1969. At that time, the land, as
part of the Caliraya-Lumot River Forest Reserve, was no longer open to private ownership as it has
been classified as public forest reserve for the public good.

Nonetheless, petitioners insist that the term, "private rights," in Proclamation No. 573, should not be
interpreted as requiring a title. They opine that it suffices if the claimant "had occupied and cultivated
the property for so many number of years, declared the land for taxation purposes, [paid] the
corresponding real estate taxes [which are] accepted by the government, and [his] occupancy and
possession [is] continuous, open and unmolested and recognized by the government. Prescinding
from this premise, petitioners urge that the 25-year possession by petitioner Gordula from 1944 to
1969, albeit five (5) years short of the 30-year possession required under Commonwealth Act (C.A.)
No. 141, as amended, is enough to vest upon petitioner Gordula the "private rights" recognized and
respected in Proclamation No. 573.

The case law does not support this submission. In Director of Lands vs. Reyes, we held that a settler
claiming the protection of "private rights" to exclude his land from a military or forest reservation must
show "x x x by clear and convincing evidence that the property in question was acquired by [any] x x
x means for the acquisition of public lands."

In fine, one claiming "private rights" must prove that he has complied with C.A. No. 141, as
amended, otherwise known as the Public Land Act, which prescribes the substantive as well as the
procedural requirements for acquisition of public lands. This law requires at least thirty (30) years of
open, continuous, exclusive and notorious possession and possession of agricultural lands of the
public domain, under a bona fide claim of acquisition, immediately preceding the filing of the
application for free patent. The rationale for the 30-year period lies in the presumption that the land
applied for pertains to the State, and that the occupants and/or possessors claim an interest therein
only by virtue of their imperfect title or continuous, open and notorious possession."

Next, petitioners argue that assuming no private rights had attached to the Lot prior to EO 33 in
1904, the President of the Philippines had subsequently segregated the Lot from the public domain
and made the Lot alienable and disposable when he issued Proclamation No. 1283 on June 21,
1974. Petitioners contend that Proclamation No. 1283 expressly excluded an area of 3,780 hectares
from the MWR and made the area part of the Boso-boso Townsite Reservation. Petitioners assert
that Lot Psu-162620 is a small part of this excluded town site area. Petitioners further contend that
town sites are considered alienable and disposable under CA 141.

Proclamation No. 1283 reads thus:

"PROCLAMATION NO. 1283

EXCLUDING FROM THE OPERATION EXECUTIVE ORDER NO. 33, DATED JULY 26, 1904, AS
AMENDED BY EXECUTIVE ORDERS NOS. 14 AND 16, BOTH SERIES OF 1915, WHICH
ESTABLISHED THE WATERSHED RESERVATION SITUATED IN THE MUNICIPALITY OF
ANTIPOLO, PROVINCE OF RIZAL, ISLAND OF LUZON, A CERTAIN PORTION OF THE LAND
EMBRACED THEREIN AND RESERVING THE SAME, TOGETHER WITH THE ADJACENT
PARCEL OF LAND OF THE PUBLIC DOMAIN, FOR TOWNSITE PURPOSES UNDER THE
PROVISIONS OF CHAPTER XI OF THE PUBLIC LAND ACT.

Upon recommendation of the Secretary of Agriculture and Natural Resources and pursuant to the
authority vested in me by law, I, FERDINAND E. MARCOS, President of the Philippines, do hereby,
exclude from the operation of Executive Order No. 33 dated July 26, 1904, as amended by
Executive Orders Nos. 14 and 16, both series of 1915, which established the Watershed
Reservation situated in the Municipality of Antipolo, Province of Rizal, Island of Luzon, certain
portions of land embraced therein and reserve the same, together with the adjacent parcel of land of
the public domain, for townsite purposes under the provisions of Chapter XI of the Public Land Act,
subject to private rights, if any there be, and to future subdivision survey in accordance with the
development plan to be prepared and approved by the Department of Local Government and
Community Development, which parcels are more particularly described as follows:

Lot A (Part of Watershed Reservation)

A parcel of land (Lot A of Proposed Poor Man’s Baguio, being a portion of the Marikina Watershed,
IN-2), situated in the municipality of Antipolo, Province of Rizal, Island of Luzon, beginning at a point
marked "1" on sketch plan, being N-74’-30 E, 8480.00 meters more or less, from BLLM 1, Antipolo,
Rizal; thence N 33’ 28 W 1575.00 m. to point 2; thence N 40’ 26 W 1538.50 m. to point 3; thence N
30’ 50W 503.17 m. to point 4; thence N 75’ 02 W 704.33 m. to point 5; thence N 14’ 18 W 1399.39
m. to point 6; thence N 43’ 25 W 477.04 m. to point 7; thence N 71’ 38 W 458.36 m. to point 8;
thence N 31’ 05 W 1025.00 m. to point 9; thence Due North 490.38 m. to point 10; thence Due North
1075.00 m. to point 11; thence Due East 1000.00 m. to point 12; thence Due East 1000.00 m. to
point 13; thence Due East 1000.00 m. to point 14; thence Due East 1000.00 m. to point 15; thence
Due East 1000.00 m. to point 16; thence Due East 1000.00 m. to point 17; thence Due East 1075.00
m. to point 18; thence Due South 1000.00 m. to point 19; thence Due South 1000.00 m. to point 20;
thence Due South 1000.00 m. to point 21; thence Due South 1000.00 m. to point 22; thence Due
South 1000.00 m. to point 23; thence Due South 1000.00 m. to point 24; thence Due South 1075.00
m. to point 25; thence Due West 1000.00 m. to point 26; thence Due West 1000.00 m. to point 27;
thence Due West 636.56 m. to point of beginning. Containing an area of three thousand seven
hundred eighty (3,780) Hectares, more or less.

Lot B (Alienable and Disposable Land)

A parcel of land (Lot B of Proposed Poor Man’s Baguio, being a portion of alienable and disposable
portion of public domain) situated in the municipality of Antipolo, Province of Rizal, Island of Luzon.
Beginning at a point marked "1" on sketch plan being N 74’ 30 E., 8430.00 m., more or less, from
BLLM 1. Antipolo, Rizal; thence Due West 363.44 m. to point 2; thence Due West 1000.00 m. to
point 3; thence Due West 100.00 m. to point 4; thence Due West 1000.00 m. to point 5; thence Due
West 1075.00 m. to point 6; thence Due North 1000.00 m. to point 7; thence Due North 1000.00 m.
to point 8; thence Due North 1000.00 m. to point 9; thence Due North 1000.00 m. to point 10; thence
Due North 1000.00 m. to point 11; thence Due North 509.62 m. to point 12; thence S. 31’ 05 E
1025.00 m. to point 13; thence S 71’ 38 E 458.36 m. to point 14; thence S 43’ 25 E 477.04 m. to
point 15; thence S 14’ 18 E 1399.39 m. to point 16; thence S 75’ 02 E 704.33 m. to point 17; thence
S. 30’ 50 E 503.17 m. to point 18; thence S 40’ 26 E 1538.50 m. to point 19; thence s 33’ 23 e
1575.00 m to point of beginning. Containing an area of one thousand two hundred twenty five
(1,225) Hectares, more or less.

Note: All data are approximate and subject to change based on future survey.

IN WITNESS WHEREOF, I Have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.

Done in the City of Manila, this 21st day of June, in the year of Our Lord, nineteen hundred and
seventy-four.
 (Sgd.) FERDINAND E. MARCOS
President
Republic of the Philippines"

Proclamation No. 1283 has since been amended by Proclamation No. 1637 issued on April 18,
1977. Proclamation No. 1637 revised the area and location of the proposed townsite. According to
then DENR Secretary Victor O. Ramos, Proclamation No. 1637 excluded Lot A (of which the Lot
claimed by petitioners is part) for townsite purposes and reverted it to MWR
coverage.34 Proclamation No. 1637 reads:

"PROCLAMATION NO. 1637

AMENDING PROCLAMATION NO. 1283, DATED JUNE 21, 1974, WHICH ESTABLISHED THE
TOWNSITE RESERVATION IN THE MUNICIPALITIES OF ANTIPOLO AND SAN MATEO,
PROVINCE OF RIZAL, ISLAND OF LUZON BY INCREASING THE AREA AND REVISING THE
TECHNICAL DESCRIPTION OF THE LAND EMBRACED THEREIN, AND REVOKING
PROCLAMATION NO. 765 DATED OCTOBER 26, 1970 THAT RESERVED PORTIONS OF THE
AREA AS RESETTLEMENT SITE.

Upon recommendation of the Secretary of Natural Resources and pursuant to the authority vested in
me by law, I, FERDINAND E. MARCOS, President of the Philippines, do hereby amend
Proclamation No. 1283, dated June 21, 1974 which established the townsite reservation in the
municipalities of Antipolo and San Mateo, Province of Rizal, Island of Luzon, by increasing the area
and revising the technical descriptions of the land embraced therein, subject to private rights, if any
there be, which parcel of land is more particularly described as follows:

(Proposed Lungsod Silangan Townsite)

A PARCEL OF LAND (Proposed Lungsod Silangan Townsite Reservation amending the area under
SWO-41762 establishing the Bagong Silangan Townsite Reservation) situated in the Municipalities
of Antipolo, San Mateo, and Montalban, Province of Rizal, Island of Luzon. Bounded on the E., along
lines 1-2-3-4-5-6-7-8-9-10-11-12-13-14-15-16-17-18-19-20-21-22-23 by the Marikina Watershed
Reservation (IN-12); on the S., along lines 23-24-25 by the portion of Antipolo; on the W., along lines
25-26-27-28-29-30 by the Municipalities of Montalban, San Mateo; and on the N., along lines 30-31-
32-33-34-35-36-37-38-39-40-41-42-43-44 by the Angat Watershed Reservation. Beginning at a point
marked "1" on the Topographic Maps with the Scale of 1:50,000 which is the identical corner 38 IN-
12, Marikina Watershed Reservation.

xxx xxx xxx

NOTE: All data are approximate and subject to change based on future survey.

Proclamation No. 765 dated October 26, 1970, which covered areas entirely within the herein
Lungsod Silangan Townsite, is hereby revoked accordingly.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.

Done in the City of Manila, this 18th day of April, in the year of Our Lord, nineteen hundred and
seventy-seven.
 (Sgd.) FERDINAND E. MARCOS
President of the Philippines"

A positive act (e.g., an official proclamation) of the Executive Department is needed to declassify
land which had been earlier classified as a watershed reservation and to convert it into alienable or
disposable land for agricultural or other purposes.35 Unless and until the land classified as such is
released in an official proclamation so that it may form part of the disposable agricultural lands of the
public domain, the rules on confirmation of imperfect title do not apply.36

The principal document presented by petitioners to prove the private character of the Lot is the
Certification of the Bureau of Forest Development dated March 18, 1986 that the Lot is excluded
from the Marikina Watershed (Exh. R). The Certification reads:

"Republic of the Philippines

Ministry of Natural Resources

BUREAU OF FOREST DEVELOPMENT

REGION IV
EL – AL Building
100 Quezon Avenue, Quezon City

MAR 18 1986

VERIFICATION ON THE STATUS OF LAND:

TO WHOM IT MAY CONCERN:

This is to certify that the tract of land situated in Barangay San Isidro, Antipolo, Rizal, containing an
area of 1,269,766 square meters, as shown and described on the reverse side hereof, surveyed by
Geodetic Engineer Telesforo Cabading for Angelina C. Reynoso, is verified to be within the area
excluded from the operation of Marikina Watershed Reservation established under Executive Order
No. 33 dated July 26, 1904 per Proclamation No. 1283, promulgated on June 21, 1974, which
established the Boso-Boso Townsite Reservation, amended by proclamation No. 1637 dated April
18, 1977 known as Lungsod Silangan Townsite Reservation.

Subject area also falls within the bounds of Bagong Lipunan Site under P.D. 1396 dated June 2,
1978 under the sole jurisdiction of the Ministry of Human Settlements, to the exclusion of any other
government agencies.

This verification is made upon the request of the Chief, Legal Staff, R-4 as contained in his internal
memorandum dated March 18, 1986.

Verified by:

(Sgd) ROMEO C. PASCUBILLO

Cartographer II

Checked by:

(Sgd) ARMENDO R. CRUZ

Supervising Cartographer
 ATTESTED:

(Sgd) LUIS G. DACANAY

Chief, Forest Engineering & Infrastructure Section"

The above certification on which petitioners rely that a reclassification had occurred, and that the Lot
is covered by the reclassification, is contradicted by several documents submitted by the Solicitor
General before the land registration court.

The Solicitor General submitted to the land registration court a Report37 dated March 2, 1988, signed
by Administrator Teodoro G. Bonifacio of the then National Land Titles and Deeds Registration
Administration, confirming that the Lot described in Psu-162620 forms part of the MWR. He thus
recommended the dismissal of the application for registration. The Report states:

"COMES NOW the Administrator of the National Land Titles and Deeds Registration Commission
and to this Honorable Court respectfully reports that:

1. A parcel of land described in plan Psu-162620 situated in the Barrio of San Isidro,
Municipality of Antipolo, Province of Rizal, is applied for registration of title in the case at bar.

2. After plotting plan Psu-162620 in our Municipal Index Map it was found that a portion of
the SW, described as Lot 3 in plan Psu-173790 was previously the subject of registration in
Land Reg. Case No. N-9578, LRC Record No. N-55948 and was issued Decree No. N-
191242 on April 4, 1986 in the name of Apolonia Garcia, et al., pursuant to the Decision and
Order for Issuance of the Decree dated February 8, 1984 and March 6, 1984, respectively,
and the remaining portion of plan Psu-162620 is inside IN-12, Marikina Watershed. x x x

"WHEREFORE, this matter is respectfully submitted to the Honorable Court for its information and
guidance with the recommendation that the application in the instant proceedings be dismissed, after
due hearing (Underlining supplied)."

Likewise, in a letter38 dated November 11, 1991, the Deputy Land Inspector, DENR, Region IV,
Community Environment and Natural Resources Office, Antipolo, Rizal, similarly confirmed that the
Lot is within the MWR. The letter states:

"That the land sought to be registered is situated at San Isidro (Boso-boso), Antipolo, Rizal, with an
area of ONE HUNDRED TWENTY SIX POINT ZERO SEVEN SIXTY SIX (126.0766) hectares, more
particularly described in Psu-162620, which is within the Marikina Watershed Reservation under
Executive Order No. 33 dated July 2, 1904 which established the Marikina Watershed Reservation
(IN-12) x x x.

"x x x

"That the land sought to be registered is not a private property of the Registration Applicant but part
of the public domain, not subjected to disposition and is covered by Proclamation No. 585 for
Integrated Social Forestry Program hence, L.R.C. No. 269-A is recommended for rejection
(Underlining supplied)." Copy of the letter is attached herewith as Annex "3" and made an integral
part hereof."

Lastly, the Solicitor General pointed out that attached to petitioner Edna T. Collado’s [as original
applicant] application is the technical description39 of the Lot signed by Robert C. Pangyarihan,
Officer-in-Charge of the Survey Division of the Bureau of Lands. This technical description
categorically stated that the Lot "is inside IN-12 Mariquina Watershed."

The evidence of record thus appears unsatisfactory and insufficient to show clearly and positively
that the Lot had been officially released from the Marikina Watershed Reservation to form part of the
alienable and disposable lands of the public domain. We hold that once a parcel of land is included
within a watershed reservation duly established by Executive Proclamation, as in the instant case, a
presumption arises that the land continues to be part of such Reservation until clear and convincing
evidence of subsequent declassification is shown.

It is obvious, based on the facts on record that neither petitioners nor their predecessors-in-interest
have been in open, continuous, exclusive and notorious possession and occupation of the Lot for at
least thirty years immediately preceding the filing of the application for confirmation of title. Even if
they submitted sufficient proof that the Lot had been excluded from the MWR upon the issuance of
Proclamation No. 1283 on June 21, 1974, petitioners’ possession as of the filing of their application
on April 25, 1985 would have been only eleven years counted from the issuance of the proclamation
in 1974. The result will not change even if we tack in the two years Sesinando Leyva allegedly
possessed the Lot from 1902 until the issuance of EO 33 in 1904. Petitioners’ case falters even
more because of the issuance of Proclamation No. 1637 on April 18, 1977. According to then DENR
Secretary Victor Ramos, Proclamation No. 1637 reverted Lot A or the townsite reservation, where
petitioners' Lot is supposedly situated, back to the MWR.

Finally, it is of no moment if the areas of the MWR are now fairly populated and vibrant communities
as claimed by petitioners. The following ruling may be applied to this case by analogy:

"A forested area classified as forest land of the public domain does not lose such classification
simply because loggers or settlers may have stripped it of its forest cover. Parcels of land classified
as forest land may actually be covered with grass or planted to crops by kaingin cultivators or other
farmers. "Forest lands" do not have to be on mountains or in out of the way places. Swampy areas
covered by mangrove trees, nipa palms and other trees growing in brackish or sea water may also
be classified as forest land. The classification is descriptive of its legal nature or status and does not
have to be descriptive of what the land actually looks like. Unless and until the land classified as
"forest" is released in an official proclamation to that effect so that it may form part of the disposable
agricultural lands of the public domain, the rules on confirmation of imperfect title do not apply."40

Second Issue: Whether the petition for annulment of judgment

should have been given due course.

Petitioners fault the Court of Appeals for giving due course to the Republic’s petition for annulment of
judgment which was filed long after the decision of the land registration court had allegedly become
final and executory. The land registration court rendered its decision on January 30, 1991 and the
Solicitor General received a copy of the decision on April 23, 1991.41 Petitioners point out that the
Solicitor General filed with the Court of Appeals the petition for annulment of judgment invoking
Section 9(2) of BP Blg. 12942 only on August 6, 1991, after the decision had supposedly become
final and executory. Moreover, petitioners further point out that the Solicitor General filed the petition
for annulment after the land registration court issued its order of May 6, 1991 directing the Land
Registration Authority to issue the corresponding decree of registration.

The Solicitor General sought the annulment of the decision on the ground that the land registration
court had no jurisdiction over the case, specifically, over the Lot which was not alienable and
disposable. The Solicitor General maintained that the decision was null and void.
Petitioners argue that the remedy of annulment of judgment is no longer available because it is
barred by the principle of res judicata. They insist that the land registration court had jurisdiction over
the case which involves private land. They also argue that the Republic is estopped from questioning
the land registration court’s jurisdiction considering that the Republic participated in the proceedings
before the court.

It is now established that the Lot, being a watershed reservation, is not alienable and disposable
public land. The evidence of the petitioners do not clearly and convincingly show that the Lot,
described as Lot Psu-162620, ceased to be a portion of the area classified as a watershed
reservation of the public domain. Any title to the Lot is void ab initio. In view of this, the alleged
procedural infirmities attending the filing of the petition for annulment of judgment are immaterial
since the land registration court never acquired jurisdiction over the Lot. All proceedings of the land
registration court involving the Lot are therefore null and void.

We apply our ruling in Martinez vs. Court of Appeals,43 as follows:

"The Land Registration Court has no jurisdiction over non-registrable properties, such as public
navigable rivers which are parts of the public domain, and cannot validly adjudge the registration of
title in favor of private applicant. Hence, the judgment of the Court of First Instance of Pampanga as
regards the Lot No. 2 of certificate of Title No. 15856 in the name of petitioners may be attacked at
any time, either directly or collaterally, by the State which is not bound by any prescriptive period
provided for by the Statute of Limitations."

We also hold that environmental consequences in this case override concerns over technicalities
and rules of procedure.

In Republic vs. De los Angeles,44 which involved the registration of public lands, specifically parts of
the sea, the Court rejected the principle of res judicata and estoppel to silence the Republic’s claim
over public lands. The Court said:

"It should be noted further that the doctrine of estoppel or laches does not apply when the
Government sues as a sovereign or asserts governmental rights, nor does estoppel or laches
validate an act that contravenes law or public policy, and that res judicata is to be disregarded if its
application would involve the sacrifice of justice to technicality."

The Court further held that "the right of reversion or reconveyance to the State of the public
properties registered and which are not capable of private appropriation or private acquisition does
not prescribe."

Third issue: Whether the petition-in-intervention is proper.

The Bockasanjo ISF Awardees Association, Inc., an association of holders of certificates of

stewardship issued by the DENR under its Integrated Social Forestry Program, filed with the Court of
Appeals on November 29, 1991 a Motion for Leave to Intervene and to Admit Petition-In-
Intervention.

According to intervenors, they are the actual occupants of the Lot which petitioners sought to
register. Aware that the parcels of land which their forefathers had occupied, developed and tilled
belong to the Government, they filed a petition with then President Corazon C. Aquino and then
DENR Secretary Fulgencio S. Factoran, to award the parcels of land to them.
Secretary Factoran directed the Director of Forest Management Bureau to take steps for the
segregation of the aforementioned area from the MWR for development under the DENR’s ISF
Programs. Subsequently, then President Aquino issued Proclamation No. 585 dated June 5, 1990
excluding 1,430 hectares from the operation of EO 33 and placed the same under the DENR’s
Integrated Social Forestry Program. Proclamation No. 585 reads:

PROCLAMATION NO. 585

AMENDING FURTHER EXECUTIVE ORDER NO. 33, DATED JULY 26, 1904 WHICH
ESTABLISHED THE MARIKINA WATERSHED RESERVATION (IN-12) AS AMENDED, BY
EXCLUDING CERTAIN PORTIONS OF LANDS EMBRACED THEREIN SITUATED AT SITIOS
BOSOBOSO, KILINGAN, VETERANS, BARANGAYS SAN JOSEPH AND PAENAAN,
MUNICIPALITY OF ANTIPOLO, PROVINCE OF RIZAL, ISLAND OF LUZON.

Upon recommendation of the Secretary of Environment and Natural Resources and pursuant to the
authority vested in me by law, I, CORAZON C. AQUINO, President of the Philippines, do hereby
exclude from the operation of Executive Order No. 33, which established the Marikina Watershed
Reservation, certain parcel of land of the public domain embraced therein situated in Sitios
Bosoboso, Veterans, Kilingan and Barangay San Joseph and Paenaan, Municipality of Antipolo,
Province of Rizal and place the same under the Integrated Social Forestry Program of the
Department of Environment and Natural Resources in accordance with existing laws, rules and
regulations, which parcel of land is more particularly described as follows:

"A PARCEL OF LAND, within the Marikina Watershed Reservation situated in the Municipality of
Antipolo, Province of Rizal, beginning at point "1" on plan, being identical to corner 1 of Marikina
Watershed Reservation; thence

xxx xxx xxx

Containing an area of One Thousand Four Hundred Thirty (1,430) Hectares.

All other lands covered and embraced under Executive Order No. 33 as amended, not otherwise
affected by this Proclamation, shall remain in force and effect.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.

Done in the City of Manila, this 5th day of June, in the year of Our Lord, nineteen hundred and
ninety.

(Sgd.) CORAZON C. AQUINO

President of the Philippines"

Pursuant to Proclamation No. 585, the chief of the ISF Unit, acting through the Regional Executive
Director of the DENR (Region IV), issued sometime between the years 1989 to 1991 certificates of
stewardship contracts to bona fide residents of the barangays mentioned in the proclamation as
qualified recipients of the ISF programs. Among those awarded were intervenors. The certificates of
stewardship are actually contracts of lease granted by the DENR to actual occupants of parcels of
land under its ISF programs for a period of twenty-five (25) years, renewable for another twenty-five
(25) years.45 The DENR awarded contracts of stewardship to ISF participants in Barangay San Isidro
(or Boso-boso) and the other barangays based on the Inventory of Forest Occupants the DENR had
conducted.46

According to intervenors, they learned only on July 31, 1991 about the pendency of LRC Case No.
269-A before the Regional Trial Court of Antipolo, Rizal. On August 8, 1991, they filed a Motion for
Leave to Intervene and to Admit Opposition in Intervention before the land registration court to
assert their rights and to protect their interests.

However, shortly after the filing of their opposition, intervenors learned that the land registration court
had already rendered a decision on January 30, 1991 confirming petitioners’ imperfect title.
Intervenors’ counsel received a copy of the decision on August 9, 1991.

On August 14, 1991, intervenors filed a motion to vacate judgment and for new trial before the land
registration court. According to intervenors, the land registration court could not act on its motions
due to the restraining order issued by the Court of Appeals on August 8, 1991, enjoining the land
registration court from executing its decision, as prayed for by the Solicitor General in its petition for
annulment of judgment. The intervenors were thus constrained to file a petition for intervention
before the Court of Appeals which allowed the same.

Rule 19 of the 1997 Rules of Civil Procedure47 provides in pertinent parts:

Section 1. Who may intervene. – A person who has a legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the custody of the court, or an officer
thereof may, with leave of court, be allowed to intervene in the action. The Court shall consider
whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the inertvenor’s rights may be fully protected in a separate
proceeding.

Sec. 2. Time to intervene. – The motion to intervene may be filed at any time before rendition of
judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and
served on the original parties.

As a rule, intervention is allowed "before rendition of judgment by the trial court," as Section 2, Rule
19 expressly provides. However, the Court has recognized exceptions to this rule in the interest of
substantial justice. Mago vs. Court of Appeals48 reiterated the ruling in Director of Lands vs. Court of
Appeals, where the Court allowed the motions for intervention even when the case had already
reached this Court. Thus, in Mago the Court held that:

"It is quite clear and patent that the motions for intervention filed by the movants at this stage of the
proceedings where trial had already been concluded x x x and on appeal x x x the same affirmed by
the Court of Appeals and the instant petition for certiorari to review said judgment is already
submitted for decision by the Supreme Court, are obviously and, manifestly late, beyond the period
prescribed under x x x Section 2, Rule 12 of the rules of Court.

But Rule 12 of the Rules of Court, like all other Rules therein promulgated, is simply a rule of
procedure, the whole purpose and object of which is to make the powers of the Court fully and
completely available for justice. The purpose of procedure is not to thwart justice. Its proper aim is to
facilitate the application of justice to the rival claims of contending parties. It was created not to
hinder and delay but to facilitate and promote the administration of justice. It does not constitute the
thing itself which courts are always striving to secure to litigants. It is designed as the means best
adopted to obtain that thing. In other words, it is a means to an end."
To be sure, the Court of Appeals did not pass upon the actual status of intervenors in relation to the
Lot as this was not in issue. Neither was the validity of the certificates of stewardship contracts which
intervenors allegedly possessed inquired into considering this too was not in issue. In fact,
intervenors did not specifically seek any relief apart from a declaration that the Lot in question
remains inalienable land of the public domain. We cannot fault the Court of Appeals for allowing the
intervention, if only to provide the rival groups a peaceful venue for ventilating their sides. This case
has already claimed at least five lives due to the raging dispute between the rival camps of the
petitioners on one side and those of the DENR awardees on the other. It also spawned a number of
criminal cases between the two rival groups including malicious mischief, robbery and arson. A strict
application of the rules would blur this bigger, far more important picture.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals dated June 22, 1992
declaring null and void the Decision dated January 30, 1991 of Branch 71, Regional Trial Court of
Antipolo, Rizal, in LRC No. 269-A, LRC Rec. No. N-59179 is AFFIRMED.

SO ORDERED.

Vitug, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., (Chairman), on official leave.

Footnotes

1 Filed under both Rules 45 and 65 of the Rules of Court.

2Thirteenth Division composed of J. Arturo B. Buena (Chairman and Ponente) and J. Justo
P. Torres, Jr. and J. Pacita Canizares-Nye as members.

3 Penned by Judge Patricio M. Patajo.

4Co-petitioners Bernardina Tawas, Joseto C. Torres, Jose Amo, Sergio L. Montealegre and
Vicente C. Torres.

5Co-petitioners Joseph L. Nunez, Gloria Serrano, Danilo Fabregas, Fernando T. Torres, Luz
G. Tubungbanua, Caridad T. Tutana, Jose C. Torres, Jr., Imelda Gaylaluad, Rosalie Tutana,
Norma Astorias, Myrna M. Lancion, Norberto Camilote, Cecilia Macaranas, Pedro Briones,
Remedios Bantigue, Dante L. Montealegre, Aida T. Godon, Armando T. Torres and Fidelito
Eco.

6 Consolidated Rejoinder, pp. 39-41; Rollo, pp. 285-287.

7 Rollo, pp. 80-82.

8 Rollo, p. 91.
9 Rollo, pp. 91-92.

Issued by Governor Luke E. Wright pursuant to the provisions of Act Numbered Six
10

Hundred and Forty-Eight (Act No. 648), Philippine Commission, an Act Authorizing the Civil
Governor to reserve portions of the public domain for public uses.

11 Republic vs. Sayo, 191 SCRA 71 (1990).

12 "We, having acquired full sovereignty over the Indies, and all lands, territories, and
possessions not heretofore ceded away by our royal predecessors, or by us, or in our name,
still pertaining to the royal crown and patrimony, it is our will that all lands which are held
without proper and true deeds of grants be restored to us according as they belong to us, in
order that after reserving before all what to us or to our viceroys, audiencias, and governors
may seem necessary for public squares, ways, pastures, and commons in those places
which are peopled, taking into consideration not only their present condition, but also their
future and their probable increase, and after distributing to the natives what may be
necessary for tillage and pasturage, confirming them in what they now have and giving them
more if necessary, all the rest of said lands may remain free and unencumbered for us to
dispose as we may wish."

13See separate opinion of Justice Reynato S. Puno in Cruz vs. Secretary of Environment
and Natural Resources, 347 SCRA 128 (2000); Chavez vs. PEA and AMARI, G.R. No.
133250, July 9, 2002.

14 Ibid., Chavez case.

15 See note 13.

16 Ibid., emphasis supplied.

17 Ibid.

18 Noblejas & Noblejas, Registration of Land Titles and Deeds, 1992 Ed.

19 Supra, see note 13.

20 Supra, see note 13.

21 Ibid.

22 Ibid.

23"Sec. 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, in which cases
beneficial use may be the measure and the limit of the grant."

24 "Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the
Philippines belong to the State. With the exception of agricultural, industrial or commercial,
residential, and resettlement lands of the public domain, natural resources shall not be
alienated, and no license, concession, or lease for the exploration, development,
exploitation, or utilization of any of the natural resources shall be granted for a period not
exceeding twenty-five years, renewable for not more than twenty-five years, except as to
water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and the limit
of the grant."

25"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. The exploration, development and
utilization of natural resources shall be under the full control and supervision of the State.
The State may directly undertake such activities or it may enter into co-production, joint
venture, or production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be provided by law. In
cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant. x x
x."

26 Black’s Law Dictionary, 6th Ed., 1990.

27 G.R. No. 112526, October 12, 2001.

28R.A. No. 6657 has suspended the authority of the President to reclassify forest or mineral
lands into agricultural lands. Section 4 (a) of RA No. 6657 (Comprehensive Agrarian Reform
law of 1988) states, "No reclassification of forest or mineral lands to agricultural lands shall
be undertaken after the approval of this Act until Congress, taking into account ecological,
developmental and equity considerations, shall have delimited by law, the specific limits of
the public domain."

29 Section 48 of CA 141 provides:

The following-described citizens of the Philippines, occupying lands of the public

domain or claiming to own any such lands or an interest therein, but whose titles
have not been perfected or completed, may apply to the Court of First Instance of the
province where the land is located for confirmation of their claims and the issuance of
a certificate of title therefor, under the Land Registration Act, to wit:

(a) Those who prior to the transfer of sovereignty from Spain to the United States
have applied for the purchase, composition or other form of grant of lands of the
public domain under the laws and royal decrees then in force and have instituted and
prosecuted the proceedings in connection therewith, but have, with or without default
 upon their part, or for any other cause, not received title therefor, and such applicants
or grantee and their heirs have occupied and cultivated said lands continuously since
the filing of their applications. See Director, Lands Management Bureau vs. Court of
Appeals, 324 SCRA 757 (2000).

30 Republic vs. Court of Appeals, 349 SCRA 451 (2001).

31 Ibid.

32 120 SCRA 734 (1983).

33 284 SCRA 617 (1998).

34
Memorandum of then DENR Secretary Victor O. Ramos to the President of the Philippines
dated March 29, 1996, Rollo, pp. 439-440.

35 Republic vs. Court of Appeals, 201 SCRA 1 (1991).

36 Heirs of Amunategui vs. Director of Forestry, 126 SCRA 69 (1983).

37 Rollo, p. 197.

38 Ibid., p. 198.

39 CA Rollo, p. 117.

40 Supra, see note 36.

41Petitioners claim that the Solicitor General received a copy of the decision as early as
February 18, 1991.

42 Sec. 9. Jurisdiction. The Court of Appeals shall exercise:

x x x.

(2) Exclusive original jurisdiction over actions for annulment of judgments of Regional
Trial Courts; x x x.

43 56 SCRA 647 (1974).

44 159 SCRA 264 (1988).

45 CA Rollo, p. 119.

46 Ibid., p. 88.

47 Rule 12 under the old Rules of Court.

48 303 SCRA 600 (1999).

G.R. No. 167707 October 8, 2008

THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,

THE REGIONAL EXECUTIVE DIRECTOR, DENR-REGION VI, REGIONAL TECHNICAL
DIRECTOR FOR LANDS, LANDS MANAGEMENT BUREAU, REGION VI PROVINCIAL
ENVIRONMENT AND NATURAL RESOURCES OFFICER OF KALIBO, AKLAN, REGISTER OF
DEEDS, DIRECTOR OF LAND REGISTRATION AUTHORITY, DEPARTMENT OF TOURISM
SECRETARY, DIRECTOR OF PHILIPPINE TOURISM AUTHORITY, petitioners,
vs.
MAYOR JOSE S. YAP, LIBERTAD TALAPIAN, MILA Y. SUMNDAD, and ANICETO YAP, in their
behalf and in behalf of all those similarly situated, respondents.

x--------------------------------------------------x

G.R. No. G.R. No. 173775 October 8, 2008

DR. ORLANDO SACAY and WILFREDO GELITO, joined by THE LANDOWNERS OF BORACAY
SIMILARLY SITUATED NAMED IN A LIST, ANNEX "A" OF THIS PETITION, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,
THE REGIONAL TECHNICAL DIRECTOR FOR LANDS, LANDS MANAGEMENT BUREAU,
REGION VI, PROVINCIAL ENVIRONMENT AND NATURAL RESOURCES OFFICER, KALIBO,
AKLAN, respondents.

DECISION

REYES, R.T., J.:

AT stake in these consolidated cases is the right of the present occupants of Boracay Island to
secure titles over their occupied lands.

There are two consolidated petitions. The first is G.R. No. 167707, a petition for review
on certiorari of the Decision1of the Court of Appeals (CA) affirming that2 of the Regional Trial Court
(RTC) in Kalibo, Aklan, which granted the petition for declaratory relief filed by respondents-
claimants Mayor Jose Yap, et al. and ordered the survey of Boracay for titling purposes. The second
is G.R. No. 173775, a petition for prohibition, mandamus, and nullification of Proclamation No.
10645">[3] issued by President Gloria Macapagal-Arroyo classifying Boracay into reserved forest
and agricultural land.

The Antecedents

G.R. No. 167707

Boracay Island in the Municipality of Malay, Aklan, with its powdery white sand beaches and warm
crystalline waters, is reputedly a premier Philippine tourist destination. The island is also home to
12,003 inhabitants4 who live in the bone-shaped island’s three barangays.5

On April 14, 1976, the Department of Environment and Natural Resources (DENR) approved the
National Reservation Survey of Boracay
Island,6 which identified several lots as being occupied or claimed by named persons.7

On November 10, 1978, then President Ferdinand Marcos issued Proclamation No. 18018 declaring
Boracay Island, among other islands, caves and peninsulas in the Philippines, as tourist zones and
marine reserves under the administration of the Philippine Tourism Authority (PTA). President
Marcos later approved the issuance of PTA Circular 3-829 dated September 3, 1982, to implement
Proclamation No. 1801.

Claiming that Proclamation No. 1801 and PTA Circular No 3-82 precluded them from filing an
application for judicial confirmation of imperfect title or survey of land for titling purposes,
respondents-claimants
Mayor Jose S. Yap, Jr., Libertad Talapian, Mila Y. Sumndad, and Aniceto Yap filed a petition for
declaratory relief with the RTC in Kalibo, Aklan.

In their petition, respondents-claimants alleged that Proclamation No. 1801 and PTA Circular No. 3-
82 raised doubts on their right to secure titles over their occupied lands. They declared that they
themselves, or through their predecessors-in-interest, had been in open, continuous, exclusive, and
notorious possession and occupation in Boracay since June 12, 1945, or earlier since time
immemorial. They declared their lands for tax purposes and paid realty taxes on them.10

Respondents-claimants posited that Proclamation No. 1801 and its implementing Circular did not
place Boracay beyond the commerce of man. Since the Island was classified as a tourist zone, it
was susceptible of private ownership. Under Section 48(b) of Commonwealth Act (CA) No. 141,
otherwise known as the Public Land Act, they had the right to have the lots registered in their names
through judicial confirmation of imperfect titles.

The Republic, through the Office of the Solicitor General (OSG), opposed the petition for declaratory
relief. The OSG countered that Boracay Island was an unclassified land of the public domain. It
formed part of the mass of lands classified as "public forest," which was not available for disposition
pursuant to Section 3(a) of Presidential Decree (PD) No. 705 or the Revised Forestry Code,11 as
amended.

The OSG maintained that respondents-claimants’ reliance on PD No. 1801 and PTA Circular No. 3-
82 was misplaced. Their right to judicial confirmation of title was governed by CA No. 141 and PD
No. 705. Since Boracay Island had not been classified as alienable and disposable, whatever
possession they had cannot ripen into ownership.

During pre-trial, respondents-claimants and the OSG stipulated on the following facts: (1)
respondents-claimants were presently in possession of parcels of land in Boracay Island; (2) these
parcels of land were planted with coconut trees and other natural growing trees; (3) the coconut
trees had heights of more or less twenty (20) meters and were planted more or less fifty (50) years
ago; and (4) respondents-claimants declared the land they were occupying for tax purposes.12

The parties also agreed that the principal issue for resolution was purely legal: whether Proclamation
No. 1801 posed any legal hindrance or impediment to the titling of the lands in Boracay. They
decided to forego with the trial and to submit the case for resolution upon submission of their
respective memoranda.13

The RTC took judicial notice14 that certain parcels of land in Boracay Island, more particularly Lots 1
and 30, Plan PSU-5344, were covered by Original Certificate of Title No. 19502 (RO 2222) in the
name of the Heirs of Ciriaco S. Tirol. These lots were involved in Civil Case Nos. 5222 and 5262
filed before the RTC of Kalibo, Aklan.15 The titles were issued on
August 7, 1933.16

RTC and CA Dispositions

On July 14, 1999, the RTC rendered a decision in favor of respondents-claimants, with
a fallo reading:

WHEREFORE, in view of the foregoing, the Court declares that Proclamation No. 1801 and PTA
Circular No. 3-82 pose no legal obstacle to the petitioners and those similarly situated to acquire title
to their lands in Boracay, in accordance with the applicable laws and in the manner prescribed
therein; and to have their lands surveyed and approved by respondent Regional Technical Director
of Lands as the approved survey does not in itself constitute a title to the land.

SO ORDERED.17

The RTC upheld respondents-claimants’ right to have their occupied lands titled in their name. It
ruled that neither Proclamation No. 1801 nor PTA Circular No. 3-82 mentioned that lands in Boracay
were inalienable or could not be the subject of disposition.18 The Circular itself recognized private
ownership of lands.19 The trial court cited Sections 8720 and 5321 of the Public Land Act as basis for
acknowledging private ownership of lands in Boracay and that only those forested areas in public
lands were declared as part of the forest reserve.22

The OSG moved for reconsideration but its motion was denied.23 The Republic then appealed to the
CA.

On December 9, 2004, the appellate court affirmed in toto the RTC decision, disposing as follows:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DENYING the
appeal filed in this case and AFFIRMING the decision of the lower court.24

The CA held that respondents-claimants could not be prejudiced by a declaration that the lands they
occupied since time immemorial were part of a forest reserve.

Again, the OSG sought reconsideration but it was similarly denied.25 Hence, the present petition
under Rule 45.

G.R. No. 173775

On May 22, 2006, during the pendency of G.R. No. 167707, President Gloria Macapagal-Arroyo
issued Proclamation No. 106426 classifying Boracay Island into four hundred (400) hectares of
reserved forest land (protection purposes) and six hundred twenty-eight and 96/100 (628.96)
hectares of agricultural land (alienable and disposable). The Proclamation likewise provided for a
fifteen-meter buffer zone on each side of the centerline of roads and trails, reserved for right-of-way
and which shall form part of the area reserved for forest land protection purposes.

On August 10, 2006, petitioners-claimants Dr. Orlando Sacay,27 Wilfredo Gelito,28 and other
landowners29 in Boracay filed with this Court an original petition for prohibition, mandamus, and
nullification of Proclamation No. 1064.30 They allege that the Proclamation infringed on their "prior
vested rights" over portions of Boracay. They have been in continued possession of their respective
lots in Boracay since time immemorial. They have also invested billions of pesos in developing their
lands and building internationally renowned first class resorts on their lots.31
Petitioners-claimants contended that there is no need for a proclamation reclassifying Boracay into
agricultural land. Being classified as neither mineral nor timber land, the island
is deemed agricultural pursuant to the Philippine Bill of 1902 and Act No. 926, known as the first
Public Land Act.32 Thus, their possession in the concept of owner for the required period entitled
them to judicial confirmation of imperfect title.

Opposing the petition, the OSG argued that petitioners-claimants do not have a vested right over
their occupied portions in the island. Boracay is an unclassified public forest land pursuant to Section
3(a) of PD No. 705. Being public forest, the claimed portions of the island are inalienable and cannot
be the subject of judicial confirmation of imperfect title. It is only the executive department, not the
courts, which has authority to reclassify lands of the public domain into alienable and disposable
lands. There is a need for a positive government act in order to release the lots for disposition.

On November 21, 2006, this Court ordered the consolidation of the two petitions as they principally
involve the same issues on the land classification of Boracay Island.33

Issues

G.R. No. 167707

The OSG raises the lone issue of whether Proclamation No. 1801 and PTA Circular No. 3-82 pose
any legal obstacle for respondents, and all those similarly situated, to acquire title to their occupied
lands in Boracay Island.34

G.R. No. 173775

Petitioners-claimants hoist five (5) issues, namely:

I.

AT THE TIME OF THE ESTABLISHED POSSESSION OF PETITIONERS IN CONCEPT OF

OWNER OVER THEIR RESPECTIVE AREAS IN BORACAY, SINCE TIME IMMEMORIAL OR AT
THE LATEST SINCE 30 YRS. PRIOR TO THE FILING OF THE PETITION FOR DECLARATORY
RELIEF ON NOV. 19, 1997, WERE THE AREAS OCCUPIED BY THEM PUBLIC AGRICULTURAL
LANDS AS DEFINED BY LAWS THEN ON JUDICIAL CONFIRMATION OF IMPERFECT
TITLES OR PUBLIC FOREST AS DEFINED BY SEC. 3a, PD 705?

II.

HAVE PETITIONERS OCCUPANTS ACQUIRED PRIOR VESTED RIGHT OF PRIVATE

OWNERSHIPOVER THEIR OCCUPIED PORTIONS OF BORACAY LAND, DESPITE THE FACT
THAT THEY HAVE NOT APPLIED YET FOR JUDICIAL CONFIRMATION OF IMPERFECT TITLE?

III.

IS THE EXECUTIVE DECLARATION OF THEIR AREAS AS ALIENABLE AND

DISPOSABLE UNDER SEC 6, CA 141 [AN] INDISPENSABLE PRE-REQUISITE FOR
PETITIONERS TO OBTAIN TITLEUNDER THE TORRENS SYSTEM?

IV.
IS THE ISSUANCE OF PROCLAMATION 1064 ON MAY 22, 2006, VIOLATIVE OF THE PRIOR
VESTED RIGHTS TO PRIVATE OWNERSHIP OF PETITIONERS OVER THEIR LANDS IN
BORACAY, PROTECTED BY THE DUE PROCESS CLAUSE OF THE CONSTITUTION OR IS
PROCLAMATION 1064 CONTRARY TO SEC. 8, CA 141, OR SEC. 4(a) OF RA 6657.

V.

CAN RESPONDENTS BE COMPELLED BY MANDAMUS TO ALLOW THE SURVEY AND TO

APPROVE THE SURVEY PLANS FOR PURPOSES OF THE APPLICATION FOR TITLING OF THE
LANDS OF PETITIONERS IN BORACAY?35 (Underscoring supplied)

In capsule, the main issue is whether private claimants (respondents-claimants in G.R. No. 167707
and petitioners-claimants in G.R. No. 173775) have a right to secure titles over their occupied
portions in Boracay. The twin petitions pertain to their right, if any, to judicial confirmation of
imperfect title under CA No. 141, as amended. They do not involve their right to secure title under
other pertinent laws.

Our Ruling

Regalian Doctrine and power of the executive

to reclassify lands of the public domain

Private claimants rely on three (3) laws and executive acts in their bid for judicial confirmation of
imperfect title, namely: (a) Philippine Bill of 190236 in relation to Act No. 926, later amended and/or
superseded by Act No. 2874 and CA No. 141;37 (b) Proclamation No. 180138 issued by then
President Marcos; and (c) Proclamation No. 106439issued by President Gloria Macapagal-Arroyo.
We shall proceed to determine their rights to apply for judicial confirmation of imperfect title under
these laws and executive acts.

But first, a peek at the Regalian principle and the power of the executive to reclassify lands of the
public domain.

The 1935 Constitution classified lands of the public domain into agricultural, forest or
timber.40 Meanwhile, the 1973 Constitution provided the following divisions: agricultural, industrial or
commercial, residential, resettlement, mineral, timber or forest and grazing lands, and such other
classes as may be provided by law,41 giving the government great leeway for classification.42 Then
the 1987 Constitution reverted to the 1935 Constitution classification with one addition: national
parks.43 Of these, only agricultural lands may be alienated.44 Prior to Proclamation No. 1064 of May
22, 2006, Boracay Island had never been expressly and administratively classified under any of
these grand divisions. Boracay was an unclassified land of the public domain.

The Regalian Doctrine dictates that all lands of the public domain belong to the State, that the State
is the source of any asserted right to ownership of land and charged with the conservation of such
patrimony.45 The doctrine has been consistently adopted under the 1935, 1973, and 1987
Constitutions.46

All lands not otherwise appearing to be clearly within private ownership are presumed to belong to
the State.47Thus, all lands that have not been acquired from the government, either by purchase or
by grant, belong to the State as part of the inalienable public domain.48 Necessarily, it is up to the
State to determine if lands of the public domain will be disposed of for private ownership. The
government, as the agent of the state, is possessed of the plenary power as the persona in law to
determine who shall be the favored recipients of public lands, as well as under what terms they may
be granted such privilege, not excluding the placing of obstacles in the way of their exercise of what
otherwise would be ordinary acts of ownership.49

Our present land law traces its roots to the Regalian Doctrine. Upon the Spanish conquest of the
Philippines, ownership of all lands, territories and possessions in the Philippines passed to the
Spanish Crown.50 The Regalian doctrine was first introduced in the Philippines through the Laws of
the Indies and the Royal Cedulas, which laid the foundation that "all lands that were not acquired
from the Government, either by purchase or by grant, belong to the public domain."51

The Laws of the Indies was followed by the Ley Hipotecaria or the Mortgage Law of 1893. The
Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as
possessory claims.52

The Royal Decree of 1894 or the Maura Law53 partly amended the Spanish Mortgage Law and
the Laws of the Indies. It established possessory information as the method of legalizing possession
of vacant Crown land, under certain conditions which were set forth in said decree.54 Under Section
393 of the Maura Law, an informacion posesoria or possessory information title,55 when duly
inscribed in the Registry of Property, is converted into a title of ownership only after the lapse of
twenty (20) years of uninterrupted possession which must be actual, public, and adverse,56 from the
date of its inscription.57 However, possessory information title had to be perfected one year after the
promulgation of the Maura Law, or until April 17, 1895. Otherwise, the lands would revert to the
State.58

In sum, private ownership of land under the Spanish regime could only be founded on royal
concessions which took various forms, namely: (1) titulo real or royal grant; (2) concesion especial or
special grant; (3) composicion con el estado or adjustment title; (4) titulo de compra or title by
purchase; and (5) informacion posesoria or possessory information title.59>

The first law governing the disposition of public lands in the Philippines under American rule was
embodied in the Philippine Bill of 1902.60 By this law, lands of the public domain in the Philippine
Islands were classified into three (3) grand divisions, to wit: agricultural, mineral, and timber or forest
lands.61 The act provided for, among others, the disposal of mineral lands by means of absolute
grant (freehold system) and by lease (leasehold system).62 It also provided the definition by
exclusion of "agricultural public lands."63 Interpreting the meaning of "agricultural lands" under the
Philippine Bill of 1902, the Court declared in Mapa v. Insular Government:64

x x x In other words, that the phrase "agricultural land" as used in Act No. 926 means those
public lands acquired from Spain which are not timber or mineral lands. x x x65 (Emphasis
Ours)

On February 1, 1903, the Philippine Legislature passed Act No. 496, otherwise known as the Land
Registration Act. The act established a system of registration by which recorded title becomes
absolute, indefeasible, and imprescriptible. This is known as the Torrens system.66

Concurrently, on October 7, 1903, the Philippine Commission passed Act No. 926, which was the
first Public Land Act. The Act introduced the homestead system and made provisions for judicial and
administrative confirmation of imperfect titles and for the sale or lease of public lands. It permitted
corporations regardless of the nationality of persons owning the controlling stock to lease or
purchase lands of the public domain.67 Under the Act, open, continuous, exclusive, and notorious
possession and occupation of agricultural lands for the next ten (10) years preceding July 26, 1904
was sufficient for judicial confirmation of imperfect title.68

On November 29, 1919, Act No. 926 was superseded by Act No. 2874, otherwise known as the
second Public Land Act. This new, more comprehensive law limited the exploitation of agricultural
lands to Filipinos and Americans and citizens of other countries which gave Filipinos the same
privileges. For judicial confirmation of title, possession and occupation en concepto dueño since time
immemorial, or since July 26, 1894, was required.69

After the passage of the 1935 Constitution, CA No. 141 amended Act No. 2874 on December 1,
1936. To this day, CA No. 141, as amended, remains as the existing general law governing the
classification and disposition of lands of the public domain other than timber and mineral lands,70 and
privately owned lands which reverted to the State.71

Section 48(b) of CA No. 141 retained the requirement under Act No. 2874 of possession and
occupation of lands of the public domain since time immemorial or since July 26, 1894. However,
this provision was superseded by Republic Act (RA) No. 1942,72 which provided for a simple thirty-
year prescriptive period for judicial confirmation of imperfect title. The provision was last amended
by PD No. 1073,73 which now provides for possession and occupation of the land applied for since
June 12, 1945, or earlier.74

The issuance of PD No. 89275 on February 16, 1976 discontinued the use of Spanish titles as
evidence in land registration proceedings.76 Under the decree, all holders of Spanish titles or grants
should apply for registration of their lands under Act No. 496 within six (6) months from the effectivity
of the decree on February 16, 1976. Thereafter, the recording of all unregistered lands77 shall be
governed by Section 194 of the Revised Administrative Code, as amended by Act No. 3344.

On June 11, 1978, Act No. 496 was amended and updated by PD No. 1529, known as the Property
Registration Decree. It was enacted to codify the various laws relative to registration of property.78 It
governs registration of lands under the Torrens system as well as unregistered lands, including
chattel mortgages.79

A positive act declaring land as alienable and disposable is required. In keeping with the
presumption of State ownership, the Court has time and again emphasized that there must be a
positive act of the government, such as an official proclamation,80 declassifying inalienable public
land into disposable land for agricultural or other purposes.81 In fact, Section 8 of CA No. 141 limits
alienable or disposable lands only to those lands which have been "officially delimited and
classified."82

The burden of proof in overcoming the presumption of State ownership of the lands of the public
domain is on the person applying for registration (or claiming ownership), who must prove that the
land subject of the application is alienable or disposable.83 To overcome this presumption,
incontrovertible evidence must be established that the land subject of the application (or claim) is
alienable or disposable.84 There must still be a positive act declaring land of the public domain as
alienable and disposable. To prove that the land subject of an application for registration is alienable,
the applicant must establish the existence of a positive act of the government such as a presidential
proclamation or an executive order; an administrative action; investigation reports of Bureau of
Lands investigators; and a legislative act or a statute.85 The applicant may also secure a certification
from the government that the land claimed to have been possessed for the required number of years
is alienable and disposable.86
In the case at bar, no such proclamation, executive order, administrative action, report, statute, or
certification was presented to the Court. The records are bereft of evidence showing that, prior to
2006, the portions of Boracay occupied by private claimants were subject of a government
proclamation that the land is alienable and disposable. Absent such well-nigh incontrovertible
evidence, the Court cannot accept the submission that lands occupied by private claimants were
already open to disposition before 2006. Matters of land classification or reclassification cannot be
assumed. They call for proof.87

Ankron and De Aldecoa did not make the whole of Boracay Island, or portions of it,
agricultural lands.Private claimants posit that Boracay was already an agricultural land pursuant to
the old cases Ankron v. Government of the Philippine Islands (1919)88 and De Aldecoa v. The Insular
Government (1909).89 These cases were decided under the provisions of the Philippine Bill of 1902
and Act No. 926. There is a statement in these old cases that "in the absence of evidence to the
contrary, that in each case the lands are agricultural lands until the contrary is shown."90

Private claimants’ reliance on Ankron and De Aldecoa is misplaced. These cases did not have the
effect of converting the whole of Boracay Island or portions of it into agricultural lands. It should be
stressed that the Philippine Bill of 1902 and Act No. 926 merely provided the manner through which
land registration courts would classify lands of the public domain. Whether the land would be
classified as timber, mineral, or agricultural depended on proof presented in each case.

Ankron and De Aldecoa were decided at a time when the President of the Philippines had no power
to classify lands of the public domain into mineral, timber, and agricultural. At that time, the courts
were free to make corresponding classifications in justiciable cases, or were vested with implicit
power to do so, depending upon the preponderance of the evidence.91 This was the Court’s ruling
in Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca v.
Republic,92 in which it stated, through Justice Adolfo Azcuna, viz.:

x x x Petitioners furthermore insist that a particular land need not be formally released by an act of
the Executive before it can be deemed open to private ownership, citing the cases of Ramos v.
Director of Lands and Ankron v. Government of the Philippine Islands.

xxxx

Petitioner’s reliance upon Ramos v. Director of Lands and Ankron v. Government is misplaced.
These cases were decided under the Philippine Bill of 1902 and the first Public Land Act No. 926
enacted by the Philippine Commission on October 7, 1926, under which there was no legal provision
vesting in the Chief Executive or President of the Philippines the power to classify lands of the public
domain into mineral, timber and agricultural so that the courts then were free to make corresponding
classifications in justiciable cases, or were vested with implicit power to do so, depending upon the
preponderance of the evidence.93

To aid the courts in resolving land registration cases under Act No. 926, it was then necessary to
devise a presumption on land classification. Thus evolved the dictum in Ankron that "the courts have
a right to presume, in the absence of evidence to the contrary, that in each case the lands are
agricultural lands until the contrary is shown."94

But We cannot unduly expand the presumption in Ankron and De Aldecoa to an argument that all
lands of the public domain had been automatically reclassified as disposable and alienable
agricultural lands. By no stretch of imagination did the presumption convert all lands of the public
domain into agricultural lands.
If We accept the position of private claimants, the Philippine Bill of 1902 and Act No. 926 would have
automatically made all lands in the Philippines, except those already classified as timber or mineral
land, alienable and disposable lands. That would take these lands out of State ownership and worse,
would be utterly inconsistent with and totally repugnant to the long-entrenched Regalian doctrine.

The presumption in Ankron and De Aldecoa attaches only to land registration cases brought under
the provisions of Act No. 926, or more specifically those cases dealing with judicial and
administrative confirmation of imperfect titles. The presumption applies to an applicant for judicial or
administrative conformation of imperfect title under Act No. 926. It certainly cannot apply to
landowners, such as private claimants or their predecessors-in-interest, who failed to avail
themselves of the benefits of Act No. 926. As to them, their land remained unclassified and, by virtue
of the Regalian doctrine, continued to be owned by the State.

In any case, the assumption in Ankron and De Aldecoa was not absolute. Land classification was, in
the end, dependent on proof. If there was proof that the land was better suited for non-agricultural
uses, the courts could adjudge it as a mineral or timber land despite the presumption. In Ankron, this
Court stated:

In the case of Jocson vs. Director of Forestry (supra), the Attorney-General admitted in effect that
whether the particular land in question belongs to one class or another is a question of fact. The
mere fact that a tract of land has trees upon it or has mineral within it is not of itself sufficient to
declare that one is forestry land and the other, mineral land. There must be some proof of the extent
and present or future value of the forestry and of the minerals. While, as we have just said, many
definitions have been given for "agriculture," "forestry," and "mineral" lands, and that in each case it
is a question of fact, we think it is safe to say that in order to be forestry or mineral land the proof
must show that it is more valuable for the forestry or the mineral which it contains than it is for
agricultural purposes. (Sec. 7, Act No. 1148.) It is not sufficient to show that there exists some trees
upon the land or that it bears some mineral. Land may be classified as forestry or mineral today,
and, by reason of the exhaustion of the timber or mineral, be classified as agricultural land tomorrow.
And vice-versa, by reason of the rapid growth of timber or the discovery of valuable minerals, lands
classified as agricultural today may be differently classified tomorrow. Each case must be decided
upon the proof in that particular case, having regard for its present or future value for one or
the other purposes. We believe, however, considering the fact that it is a matter of public
knowledge that a majority of the lands in the Philippine Islands are agricultural lands that the courts
have a right to presume, in the absence of evidence to the contrary, that in each case the lands are
agricultural lands until the contrary is shown. Whatever the land involved in a particular land
registration case is forestry or mineral land must, therefore, be a matter of proof. Its superior
value for one purpose or the other is a question of fact to be settled by the proof in each
particular case. The fact that the land is a manglar [mangrove swamp] is not sufficient for the courts
to decide whether it is agricultural, forestry, or mineral land. It may perchance belong to one or the
other of said classes of land. The Government, in the first instance, under the provisions of Act No.
1148, may, by reservation, decide for itself what portions of public land shall be considered forestry
land, unless private interests have intervened before such reservation is made. In the latter case,
whether the land is agricultural, forestry, or mineral, is a question of proof. Until private interests
have intervened, the Government, by virtue of the terms of said Act (No. 1148), may decide for itself
what portions of the "public domain" shall be set aside and reserved as forestry or mineral land.
(Ramos vs. Director of Lands, 39 Phil. 175; Jocson vs. Director of Forestry, supra)95(Emphasis ours)

Since 1919, courts were no longer free to determine the classification of lands from the facts of each
case, except those that have already became private lands.96 Act No. 2874, promulgated in 1919
and reproduced in Section 6 of CA No. 141, gave the Executive Department, through the President,
the exclusive prerogative to classify or reclassify public lands into alienable or disposable, mineral
or forest.96-a Since then, courts no longer had the authority, whether express or implied, to determine
the classification of lands of the public domain.97

Here, private claimants, unlike the Heirs of Ciriaco Tirol who were issued their title in 1933,98 did not
present a justiciable case for determination by the land registration court of the property’s land
classification. Simply put, there was no opportunity for the courts then to resolve if the land the
Boracay occupants are now claiming were agricultural lands. When Act No. 926 was supplanted by
Act No. 2874 in 1919, without an application for judicial confirmation having been filed by private
claimants or their predecessors-in-interest, the courts were no longer authorized to determine the
property’s land classification. Hence, private claimants cannot bank on Act No. 926.

We note that the RTC decision99 in G.R. No. 167707 mentioned Krivenko v. Register of Deeds of
Manila,100 which was decided in 1947 when CA No. 141, vesting the Executive with the sole power to
classify lands of the public domain was already in effect. Krivenko cited the old cases Mapa v.
Insular Government,101 De Aldecoa v. The Insular Government,102 and Ankron v. Government of the
Philippine Islands.103

Krivenko, however, is not controlling here because it involved a totally different issue. The pertinent
issue in Krivenko was whether residential lots were included in the general classification of
agricultural lands; and if so, whether an alien could acquire a residential lot. This Court ruled that as
an alien, Krivenko was prohibited by the 1935 Constitution104 from acquiring agricultural land, which
included residential lots. Here, the issue is whether unclassified lands of the public domain are
automatically deemed agricultural.

Notably, the definition of "agricultural public lands" mentioned in Krivenko relied on the old cases
decided prior to the enactment of Act No. 2874, including Ankron and De Aldecoa.105 As We have
already stated, those cases cannot apply here, since they were decided when the Executive did not
have the authority to classify lands as agricultural, timber, or mineral.

Private claimants’ continued possession under Act No. 926 does not create a presumption
that the land is alienable. Private claimants also contend that their continued possession of
portions of Boracay Island for the requisite period of ten (10) years under Act No. 926106 ipso
facto converted the island into private ownership. Hence, they may apply for a title in their name.

A similar argument was squarely rejected by the Court in Collado v. Court of

Appeals.107 Collado, citing the separate opinion of now Chief Justice Reynato S. Puno in Cruz v.
Secretary of Environment and Natural Resources,107-a ruled:

"Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the Philippine
Bill of 1902. The law governed the disposition of lands of the public domain. It prescribed rules and
regulations for the homesteading, selling and leasing of portions of the public domain of the
Philippine Islands, and prescribed the terms and conditions to enable persons to perfect their titles to
public lands in the Islands. It also provided for the "issuance of patents to certain native settlers upon
public lands," for the establishment of town sites and sale of lots therein, for the completion of
imperfect titles, and for the cancellation or confirmation of Spanish concessions and grants in the
Islands." In short, the Public Land Act operated on the assumption that title to public lands in the
Philippine Islands remained in the government; and that the government’s title to public land sprung
from the Treaty of Paris and other subsequent treaties between Spain and the United States. The
term "public land" referred to all lands of the public domain whose title still remained in the
government and are thrown open to private appropriation and settlement, and excluded the
patrimonial property of the government and the friar lands."
Thus, it is plain error for petitioners to argue that under the Philippine Bill of 1902 and Public
Land Act No. 926, mere possession by private individuals of lands creates the legal
presumption that the lands are alienable and disposable.108 (Emphasis Ours)

Except for lands already covered by existing titles, Boracay was an unclassified land of the
public domain prior to Proclamation No. 1064. Such unclassified lands are considered public
forest under PD No. 705. The DENR109 and the National Mapping and Resource Information
Authority110 certify that Boracay Island is an unclassified land of the public domain.

PD No. 705 issued by President Marcos categorized all unclassified lands of the public domain as
public forest. Section 3(a) of PD No. 705 defines a public forest as "a mass of lands of the public
domain which has not been the subject of the present system of classification for the determination
of which lands are needed for forest purpose and which are not." Applying PD No. 705, all
unclassified lands, including those in Boracay Island, are ipso factoconsidered public forests. PD No.
705, however, respects titles already existing prior to its effectivity.

The Court notes that the classification of Boracay as a forest land under PD No. 705 may seem to
be out of touch with the present realities in the island. Boracay, no doubt, has been partly stripped of
its forest cover to pave the way for commercial developments. As a premier tourist destination for
local and foreign tourists, Boracay appears more of a commercial island resort, rather than a forest
land.

Nevertheless, that the occupants of Boracay have built multi-million peso beach resorts on the
island;111 that the island has already been stripped of its forest cover; or that the implementation of
Proclamation No. 1064 will destroy the island’s tourism industry, do not negate its character as
public forest.

Forests, in the context of both the Public Land Act and the Constitution112 classifying lands of the
public domain into "agricultural, forest or timber, mineral lands, and national parks," do not
necessarily refer to large tracts of wooded land or expanses covered by dense growths of trees and
underbrushes.113 The discussion in Heirs of Amunategui v. Director of Forestry114 is particularly
instructive:

A forested area classified as forest land of the public domain does not lose such classification simply
because loggers or settlers may have stripped it of its forest cover. Parcels of land classified as
forest land may actually be covered with grass or planted to crops by kaingin cultivators or other
farmers. "Forest lands" do not have to be on mountains or in out of the way places. Swampy areas
covered by mangrove trees, nipa palms, and other trees growing in brackish or sea water may also
be classified as forest land. The classification is descriptive of its legal nature or status and
does not have to be descriptive of what the land actually looks like. Unless and until the land
classified as "forest" is released in an official proclamation to that effect so that it may form part of
the disposable agricultural lands of the public domain, the rules on confirmation of imperfect title do
not apply.115 (Emphasis supplied)

There is a big difference between "forest" as defined in a dictionary and "forest or timber land" as a
classification of lands of the public domain as appearing in our statutes. One is descriptive of what
appears on the land while the other is a legal status, a classification for legal purposes.116 At any
rate, the Court is tasked to determine the legalstatus of Boracay Island, and not look into its physical
layout. Hence, even if its forest cover has been replaced by beach resorts, restaurants and other
commercial establishments, it has not been automatically converted from public forest to alienable
agricultural land.
Private claimants cannot rely on Proclamation No. 1801 as basis for judicial confirmation of
imperfect title. The proclamation did not convert Boracay into an agricultural land. However,
private claimants argue that Proclamation No. 1801 issued by then President Marcos in 1978 entitles
them to judicial confirmation of imperfect title. The Proclamation classified Boracay, among other
islands, as a tourist zone. Private claimants assert that, as a tourist spot, the island is susceptible of
private ownership.

Proclamation No. 1801 or PTA Circular No. 3-82 did not convert the whole of Boracay into an
agricultural land. There is nothing in the law or the Circular which made Boracay Island an
agricultural land. The reference in Circular No. 3-82 to "private lands"117 and "areas declared as
alienable and disposable"118 does not by itself classify the entire island as agricultural. Notably,
Circular No. 3-82 makes reference not only to private lands and areas but also to public forested
lands. Rule VIII, Section 3 provides:

No trees in forested private lands may be cut without prior authority from the PTA. All forested areas
in public lands are declared forest reserves. (Emphasis supplied)

Clearly, the reference in the Circular to both private and public lands merely recognizes that the
island can be classified by the Executive department pursuant to its powers under CA No. 141. In
fact, Section 5 of the Circular recognizes the then Bureau of Forest Development’s authority to
declare areas in the island as alienable and disposable when it provides:

Subsistence farming, in areas declared as alienable and disposable by the Bureau of Forest
Development.

Therefore, Proclamation No. 1801 cannot be deemed the positive act needed to classify Boracay
Island as alienable and disposable land. If President Marcos intended to classify the island as
alienable and disposable or forest, or both, he would have identified the specific limits of each, as
President Arroyo did in Proclamation No. 1064. This was not done in Proclamation No. 1801.

The Whereas clauses of Proclamation No. 1801 also explain the rationale behind the declaration of
Boracay Island, together with other islands, caves and peninsulas in the Philippines, as a tourist
zone and marine reserve to be administered by the PTA – to ensure the concentrated efforts of the
public and private sectors in the development of the areas’ tourism potential with due regard for
ecological balance in the marine environment. Simply put, the proclamation is aimed at
administering the islands for tourism and ecological purposes. It does not address the areas’
alienability.119

More importantly, Proclamation No. 1801 covers not only Boracay Island, but sixty-four (64) other
islands, coves, and peninsulas in the Philippines, such as Fortune and Verde Islands in Batangas,
Port Galera in Oriental Mindoro, Panglao and Balicasag Islands in Bohol, Coron Island, Puerto
Princesa and surrounding areas in Palawan, Camiguin Island in Cagayan de Oro, and Misamis
Oriental, to name a few. If the designation of Boracay Island as tourist zone makes it alienable and
disposable by virtue of Proclamation No. 1801, all the other areas mentioned would likewise be
declared wide open for private disposition. That could not have been, and is clearly beyond, the
intent of the proclamation.

It was Proclamation No. 1064 of 2006 which positively declared part of Boracay as alienable
and opened the same to private ownership. Sections 6 and 7 of CA No. 141120 provide that it is
only the President, upon the recommendation of the proper department head, who has the authority
to classify the lands of the public domain into alienable or disposable, timber and mineral lands.121
In issuing Proclamation No. 1064, President Gloria Macapagal-Arroyo merely exercised the authority
granted to her to classify lands of the public domain, presumably subject to existing vested rights.
Classification of public lands is the exclusive prerogative of the Executive Department, through the
Office of the President. Courts have no authority to do so.122 Absent such classification, the land
remains unclassified until released and rendered open to disposition.123

Proclamation No. 1064 classifies Boracay into 400 hectares of reserved forest land and 628.96
hectares of agricultural land. The Proclamation likewise provides for a 15-meter buffer zone on each
side of the center line of roads and trails, which are reserved for right of way and which shall form
part of the area reserved for forest land protection purposes.

Contrary to private claimants’ argument, there was nothing invalid or irregular, much less
unconstitutional, about the classification of Boracay Island made by the President through
Proclamation No. 1064. It was within her authority to make such classification, subject to existing
vested rights.

Proclamation No. 1064 does not violate the Comprehensive Agrarian Reform Law. Private
claimants further assert that Proclamation No. 1064 violates the provision of the Comprehensive
Agrarian Reform Law (CARL) or RA No. 6657 barring conversion of public forests into agricultural
lands. They claim that since Boracay is a public forest under PD No. 705, President Arroyo can no
longer convert it into an agricultural land without running afoul of Section 4(a) of RA No. 6657, thus:

SEC. 4. Scope. – The Comprehensive Agrarian Reform Law of 1988 shall cover, regardless of
tenurial arrangement and commodity produced, all public and private agricultural lands as provided
in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain
suitable for agriculture.

More specifically, the following lands are covered by the Comprehensive Agrarian Reform Program:

(a) All alienable and disposable lands of the public domain devoted to or suitable for agriculture.
No reclassification of forest or mineral lands to agricultural lands shall be undertaken after the
approval of this Act until Congress, taking into account ecological, developmental and equity
considerations, shall have determined by law, the specific limits of the public domain.

That Boracay Island was classified as a public forest under PD No. 705 did not bar the Executive
from later converting it into agricultural land. Boracay Island still remained an unclassified land of the
public domain despite PD No. 705.

In Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols v. Republic,124 the Court
stated that unclassified lands are public forests.

While it is true that the land classification map does not categorically state that the islands
are public forests, the fact that they were unclassified lands leads to the same result. In the
absence of the classification as mineral or timber land, the land remains unclassified land until
released and rendered open to disposition.125 (Emphasis supplied)

Moreover, the prohibition under the CARL applies only to a "reclassification" of land. If the land had
never been previously classified, as in the case of Boracay, there can be no prohibited
reclassification under the agrarian law. We agree with the opinion of the Department of Justice126 on
this point:
Indeed, the key word to the correct application of the prohibition in Section 4(a) is the word
"reclassification." Where there has been no previous classification of public forest [referring, we
repeat, to the mass of the public domain which has not been the subject of the present system of
classification for purposes of determining which are needed for forest purposes and which are not]
into permanent forest or forest reserves or some other forest uses under the Revised Forestry Code,
there can be no "reclassification of forest lands" to speak of within the meaning of Section 4(a).

Thus, obviously, the prohibition in Section 4(a) of the CARL against the reclassification of forest
lands to agricultural lands without a prior law delimiting the limits of the public domain, does not, and
cannot, apply to those lands of the public domain, denominated as "public forest" under the Revised
Forestry Code, which have not been previously determined, or classified, as needed for forest
purposes in accordance with the provisions of the Revised Forestry Code.127

Private claimants are not entitled to apply for judicial confirmation of imperfect title under CA
No. 141. Neither do they have vested rights over the occupied lands under the said law. There
are two requisites for judicial confirmation of imperfect or incomplete title under CA No. 141, namely:
(1) open, continuous, exclusive, and notorious possession and occupation of the subject land by
himself or through his predecessors-in-interest under a bona fide claim of ownership since time
immemorial or from June 12, 1945; and (2) the classification of the land as alienable and disposable
land of the public domain.128

As discussed, the Philippine Bill of 1902, Act No. 926, and Proclamation No. 1801 did not convert
portions of Boracay Island into an agricultural land. The island remained an unclassified land of the
public domain and, applying the Regalian doctrine, is considered State property.

Private claimants’ bid for judicial confirmation of imperfect title, relying on the Philippine Bill of 1902,
Act No. 926, and Proclamation No. 1801, must fail because of the absence of the second element of
alienable and disposable land. Their entitlement to a government grant under our present Public
Land Act presupposes that the land possessed and applied for is already alienable and disposable.
This is clear from the wording of the law itself.129Where the land is not alienable and disposable,
possession of the land, no matter how long, cannot confer ownership or possessory rights.130

Neither may private claimants apply for judicial confirmation of imperfect title under Proclamation No.
1064, with respect to those lands which were classified as agricultural lands. Private claimants failed
to prove the first element of open, continuous, exclusive, and notorious possession of their lands in
Boracay since June 12, 1945.

We cannot sustain the CA and RTC conclusion in the petition for declaratory relief that private
claimants complied with the requisite period of possession.

The tax declarations in the name of private claimants are insufficient to prove the first element of
possession. We note that the earliest of the tax declarations in the name of private claimants were
issued in 1993. Being of recent dates, the tax declarations are not sufficient to convince this Court
that the period of possession and occupation commenced on June 12, 1945.

Private claimants insist that they have a vested right in Boracay, having been in possession of the
island for a long time. They have invested millions of pesos in developing the island into a tourist
spot. They say their continued possession and investments give them a vested right which cannot
be unilaterally rescinded by Proclamation No. 1064.

The continued possession and considerable investment of private claimants do not automatically
give them a vested right in Boracay. Nor do these give them a right to apply for a title to the land
they are presently occupying. This Court is constitutionally bound to decide cases based on the
evidence presented and the laws applicable. As the law and jurisprudence stand, private claimants
are ineligible to apply for a judicial confirmation of title over their occupied portions in Boracay even
with their continued possession and considerable investment in the island.

One Last Note

The Court is aware that millions of pesos have been invested for the development of Boracay Island,
making it a by-word in the local and international tourism industry. The Court also notes that for a
number of years, thousands of people have called the island their home. While the Court
commiserates with private claimants’ plight, We are bound to apply the law strictly and judiciously.
This is the law and it should prevail. Ito ang batas at ito ang dapat umiral.

All is not lost, however, for private claimants. While they may not be eligible to apply for judicial
confirmation of imperfect title under Section 48(b) of CA No. 141, as amended, this does not denote
their automatic ouster from the residential, commercial, and other areas they possess now classified
as agricultural. Neither will this mean the loss of their substantial investments on their occupied
alienable lands. Lack of title does not necessarily mean lack of right to possess.

For one thing, those with lawful possession may claim good faith as builders of improvements. They
can take steps to preserve or protect their possession. For another, they may look into other modes
of applying for original registration of title, such as by homestead131 or sales patent,132 subject to the
conditions imposed by law.

More realistically, Congress may enact a law to entitle private claimants to acquire title to their
occupied lots or to exempt them from certain requirements under the present land laws. There is one
such bill133 now pending in the House of Representatives. Whether that bill or a similar bill will
become a law is for Congress to decide.

In issuing Proclamation No. 1064, the government has taken the step necessary to open up the
island to private ownership. This gesture may not be sufficient to appease some sectors which view
the classification of the island partially into a forest reserve as absurd. That the island is no longer
overrun by trees, however, does not becloud the vision to protect its remaining forest cover and to
strike a healthy balance between progress and ecology. Ecological conservation is as important as
economic progress.

To be sure, forest lands are fundamental to our nation’s survival. Their promotion and protection are
not just fancy rhetoric for politicians and activists. These are needs that become more urgent as
destruction of our environment gets prevalent and difficult to control. As aptly observed by Justice
Conrado Sanchez in 1968 in Director of Forestry v. Munoz:134

The view this Court takes of the cases at bar is but in adherence to public policy that should be
followed with respect to forest lands. Many have written much, and many more have spoken, and
quite often, about the pressing need for forest preservation, conservation, protection, development
and reforestation. Not without justification. For, forests constitute a vital segment of any country's
natural resources. It is of common knowledge by now that absence of the necessary green cover on
our lands produces a number of adverse or ill effects of serious proportions. Without the trees,
watersheds dry up; rivers and lakes which they supply are emptied of their contents. The fish
disappear. Denuded areas become dust bowls. As waterfalls cease to function, so will hydroelectric
plants. With the rains, the fertile topsoil is washed away; geological erosion results. With erosion
come the dreaded floods that wreak havoc and destruction to property – crops, livestock, houses,
and highways – not to mention precious human lives. Indeed, the foregoing observations should be
written down in a lumberman’s decalogue.135

WHEREFORE, judgment is rendered as follows:

1. The petition for certiorari in G.R. No. 167707 is GRANTED and the Court of Appeals Decision in
CA-G.R. CV No. 71118 REVERSED AND SET ASIDE.

2. The petition for certiorari in G.R. No. 173775 is DISMISSED for lack of merit.

SO ORDERED.

RUBEN T. REYES
Associate Justice

WE CONCUR:.

REYNATO S. PUNO
Chief Justice
Chairperson

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

(On official leave)

CONCHITA CARPIO MORALES
RENATO C. CORONA*
Associate Justice
Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA** TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

* On official leave per Special Order No. 520 dated September 19, 2008.

** No part. Justice Nachura participated in the present case as Solicitor General.

1Rollo (G.R. No. 167707), pp. 37-43. CA-G.R. CV No. 71118, promulgated on December 9,
2004. Penned by Associate Justice Isaias P. Dicdican, with Associate Justices Sesinando E.
Villon and Ramon M. Bato, Jr., concurring.

2Id. at 47-54; Annex "C." Spl. Civil Case No. 5403. Penned by Judge Niovady M. Marin,
RTC, Kalibo, Branch 5.

3 Rollo (G.R. No. 173775), pp. 101-114. Annex "F." Classifying Boracay Island Situated in
the Municipality of Malay, Province of Aklan Into Forestland (Protection Purposes) and Into
Agricultural Land (Alienable and Disposable) Pursuant to Presidential Decreee No. 705
(Revised Forestry Reform Code of the Philippines). Issued on May 22, 2006.

4 As of the year 2000.

5 Manoc-Manoc, Balabag, and Yapak.

6 Under Survey Plan No. NR-06-000001.

7 Rollo (G.R. No. 167707), p. 49.

8Id. at 21-23; Annex "B." Declaring Certain Islands, Coves, and Peninsulas in the Philippines
as Tourist Zones and Marine Reserves Under the Administration and Control of the
Philippine Tourism Authority.

9 Id. at 24-27. Rules and Regulations Governing Activities at Boracay Island Tourist Zone.

10 Records, pp. 13-32; Annexes "A" to "A-18."

11 Issued on May 19, 1975.

12 Records, p. 148.

13 Id.
14 Rules of Court, Rule 129, Sec. 2.

15 Records, p. 148.

16 Id. at 177, 178.

17 Rollo (G.R. No. 167707), p. 54.

18 Id. at 51.

19 Id.; PTA Circular No. 3-82, Rule VIII, Sec. 1(3) states:

No trees in forested private lands may be cut without prior authority from the PTA. All
forested areas in public lands are declared forest reserves.

20Sec. 87. If all the lands included in the proclamation of the President are not registered
under the Land Registration Act, the Solicitor-General, if requested to do so by the Secretary
of Agriculture and Natural Resources, shall proceed in accordance with the provisions of
section fifty-three of this Act.

21Sec. 53. It shall be lawful for the Director of Lands, whenever in the opinion of the
President the public interests shall require it, to cause to be filed in the proper Court of First
Instance, through the Solicitor General or the officer acting in his stead, a petition against the
holder, claimant, possessor, or occupant of any land who shall not have voluntarily come in
under the provisions of this chapter or of the Land Registration Act, stating in substance that
the title of such holder, claimant, possessor, or occupant is open to discussion; or that the
boundaries of any such land which has not been brought into court as aforesaid are open to
question; or that it is advisable that the title to such land be settled and adjudicated, and
praying that the title to any such land or the boundaries thereof or the right to occupancy
thereof be settled and adjudicated. The judicial proceedings under this section shall be in
accordance with the laws on adjudication of title in cadastral proceedings.

22 Rollo (G.R. No. 167707), p. 51.

23 Id. at 211-121.

24 Id. at 42.

25 Id. at 45-46.

26 Supra note 3.

27Owner of Waling-Waling Beach Resort and Chairman of the Board of Boracay Foundation,
Inc.

28 Owner of Willy’s Beach Resort.

29 Rollo (G.R. No. 173775), p. 20; Annex "A."

30 Petitioners in G.R. No. 173775 claim that they are also petitioners in the declaratory case
filed in November 1997 before the RTC in Kalibo, Aklan, docketed as Sp. Civil Case No.
5403 and now before this Court as G.R. No. 167707.

31 Rollo (G.R No. 173775), pp. 4-5.

32 Id. at 4.

33 Id. at 143.

34 Rollo (G.R. No. 167707), p. 26.

35 Rollo (G.R. No. 173775), pp. 280-281.

36An Act Temporarily to Provide for the Administration of the Affairs of Civil Government in
the Philippine Islands, and for Other Purposes. Issued on July 1, 1902.

37An Act to Amend and Compile the Laws Relative to Lands of the Public Domain. Approved
on December 1, 1936.

38 See note 8.

39 See note 3.

40 Constitution (1935), Art. XIII, Sec. 1.

41 Constitution (1973), Art. XIV, Sec. 10.

42 Bernas, S.J., The Intent of the 1986 Constitution Writers, 1995 ed., p. 830.

43 Constitution (1987), Art. XII, Sec. 3.

44 Id.

Zarate v. Director of Lands, G.R. No. 131501, July 14, 2004, 434 SCRA 322; Reyes v.
45

Court of Appeals, 356 Phil. 606, 624 (1998).

46 Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152.

47Zarate v. Director of Lands, supra; Collado v. Court of Appeals, G.R. No. 107764, October
4, 2002, 390 SCRA 343; Director of Lands v. Intermediate Appellate Court, G.R. No. 73246,
March 2, 1993, 219 SCRA 339.

48Republic v. Estonilo, G.R. No. 157306, November 25, 2005, 476 SCRA 265; Zarate v.
Director of Lands,supra.

49 De los Reyes v. Ramolete, G.R. No. L-47331, June 21, 1983, 122 SCRA 652,
citing Gonzaga v. Court of Appeals, G.R. No. L-27455, June 28, 1973, 51 SCRA 381.

50 Collado v. Court of Appeals, supra, citing Chavez v. Public Estates Authority, supra.
51Id., citing separate opinion of then Justice Reynato S. Puno in Cruz v. Secretary of
Environment and Natural Resources, G.R. No. 135385, December 6, 2000, 347 SCRA
128, and Chavez v. Public Estates Authority, supra note 46.

52 Collado v. Court of Appeals, supra note 47.

53 Effective February 13, 1894.

54 De Aldecoa v. The Insular Government, 13 Phil. 159 (1909).

55 A valid title based upon adverse possession or a valid title based upon prescription.
Noblejas, A.H. and Noblejas, E.H., Registration of Land Titles and Deeds, 1986 ed., p. 39,
citing Cruz v. De Leon, 21 Phil. 199 (1912).

56 Ten (10) years, according to Archbishop of Manila v. Arnedo, 30 Phil. 593 (1915).

57 Noblejas, A.H. and Noblejas, E.H., Registration of Land Titles and Deeds, supra at 8.

Id. at 9; Director of Forest Administration v. Fernandez, G.R. Nos. 36827, 56622 & 70076,
58

December 10, 1990, 192 SCRA 121, 137.

59 Id. at 5-11.

60 See note 36.

61Director of Forestry v. Villareal, G.R. No. L-32266, February 27, 1989, 170 SCRA 598,
601.

62Noblejas, A.H. and Noblejas, E.H., Registration of Land Titles and Deeds, supra note 55,
at 347.

63 The provisions relevant to the definition are:

Sec. 13. That the Government of the Philippine Islands, subject to the provisions of
this Act and except as herein provided, shall classify according to its agricultural
character and productiveness, and shall immediately make rules and regulations for
the lease, sale, or other disposition of the public lands other than timber or mineral
lands, but such rules and regulations shall not go into effect or have the force of law
until they have received the approval of the President, and when approved by the
President they shall be submitted by him to Congress at the beginning of the next
ensuing session thereof and unless disapproved or amended by Congress at said
session they shall at the close of such period have the force and effect of law in the
Philippine Islands: Provided, That a single homestead entry shall not exceed sixteen
hectares in extent.

Sec. 14. That the Government of the Philippine Islands is hereby authorized and
empowered to enact rules and regulations and to prescribe terms and conditions to
enable persons to perfect their title to public lands in said Islands, who, prior to the
transfer of sovereignty from Spain to the United States, had fulfilled all or some of the
conditions required by the Spanish laws and royal decrees of the Kingdom of Spain
for the acquisition of legal title thereto, yet failed to secure conveyance of title; and
 the Philippine Commission is authorized to issue patents, without compensation, to
any native of said Islands, conveying title to any tract of land not more than sixteen
hectares in extent, which were public lands and had been actually occupied by such
native or his ancestors prior to and on the thirteenth of August, eighteen hundred and
ninety-eight.

Sec. 15. That the Government of the Philippine Islands is hereby authorized and
empowered, on such terms as it may prescribe, by general legislation, to provide for
the granting or sale and conveyance to actual occupants and settlers and other
citizens of said Islands such parts and portions of the public domain, other than
timber and mineral lands, of the United States in said Islands as it may deem wise,
not exceeding sixteen hectares to any one person and for the sale and conveyance
of not more than one thousand and twenty-four hectares to any corporation or
association of persons: Provided, That the grant or sale of such lands, whether the
purchase price be paid at once or in partial payments, shall be conditioned upon
actual and continued occupancy, improvement, and cultivation of the premises sold
for a period of not less than five years, during which time the purchaser or grantee
can not alienate or encumber said land or the title thereto; but such restriction shall
not apply to transfers of rights and title of inheritance under the laws for the
distribution of the estates of decedents.

64 10 Phil. 175 (1908).

65 Id. at 182.

66 Collado v. Court of Appeals, supra note 47.

67 Noblejas, A.H. and Noblejas, E.H., Registration of Land Titles and Deeds, supra note 55.

68 Sec. 54, par. 6.

69Sec. 45(b); Public Estates Authority v. Court of Appeals, G.R. No. 112172, November 20,
2000, 345 SCRA 96; Director of Lands v. Buyco, G.R. No. 91189, November 27, 1992, 216
SCRA 78.

70Collado v. Court of Appeals, supra note 47, see separate opinion of Justice Puno in Cruz
v. Secretary of Environment and Natural Resources, supra note 51, and Chavez v. Public
Estates Authority, supra note 46.

71 Sec. 2.

72An Act to Amend Subsection (b) of Section Forty-Eight of Commonwealth Act Numbered
One Hundred Forty-One, Otherwise Known as the Public Land Act. Approved on June 22,
1957.

73Extending the Period of Filing Applications for Administrative Legislation (Free Patent) and
Judicial Confirmation of Imperfect and Incomplete Titles to Alienable and Disposable Lands
in the Public Domain Under Chapter VII and Chapter VIII of Commonwealth Act No. 141, As
Amended, For Eleven (11) Years Commencing January 1, 1977. Approved on January 25,
1977.
74 Republic v. Doldol, G.R. No. 132963, September 10, 1998, 295 SCRA 359.

75Discontinuance of the Spanish Mortgage System of Registration and of the Use of Spanish
Titles as Evidence in Land Registration Proceedings (Issued – February 16, 1976).

76Director of Forest Administration v. Fernandez, supra note 58, citing Director of Lands v.
Rivas, G.R. No. L-61539, February 14, 1986, 141 SCRA 329.

77 Lands which were not recorded under the Maura Law and were not yet covered by Torrens
titles.

Presidential Decree No. 1529, Preamble; Director of Lands v. Intermediate Appellate

78

Court, supra note 47.

79 Peña, N. and Peña, Jr., N., Registration of Land Titles and Deeds, 1988 ed., p. 9.

80Republic v. Court of Appeals, G.R. No. 48227, August 21, 1991, 201 SCRA 1; Director of
Lands v. Court of Appeals, G.R. No. 83609, October 26, 1989, 178 SCRA 708.

81Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca v.
Republic, G.R. No. 151312, August 30, 2006, 500 SCRA 209; Director of Lands v.
Intermediate Appellate Court, supra note 47, citing Director of Lands v. Aquino, G.R. No.
31688, December 17, 1990, 192 SCRA 296.

82 Chavez v. Public Estates Authority, supra note 46.

83Republic v. Lao, G.R. No. 150413, July 1, 2003; 405 SCRA 291; Director of Lands v.
Intermediate Appellate Court, supra note 47, citing Director of Lands v. Aquino, supra.

84 Republic v. Lao, supra; Pagkatipunan v. Court of Appeals, 429 Phil. 377, 389-390 (2002).

85 Republic of the Philippines v. Muñoz, G.R. No. 151910, October 15, 2007.

86Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca v.
Republic, supra; Gutierrez Hermanos v. Court of Appeals, G.R. Nos. 54472-77, September
28, 1989, 178 SCRA 37.

87 Republic v. Naguiat, G.R. No. 134209, January 24, 2006, 479 SCRA 585.

88 40 Phil. 10 (1919).

89 Supra note 54.

90 Ankron v. Government of the Philippine Islands, supra at 16.

Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca v.
91

Republic, supra note 81.

92 Id. at 76.
93 Id. at 219-223.

94 Ankron v. Government of the Philippine Islands, supra note 88, at 16.

95 Id. at 15-16.

96Act No. 2874, Sec. 8; Republic v. Court of Appeals, G.R. No. 155450, August 6,
2008; Republic v. Court of Appeals, G.R. No. 127245, January 30, 2001.

Bureau of Forestry v. Court of Appeals, G.R. No. L-37995, August 31, 1987, 153 SCRA
96-a

351, 357.

Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca v.
97

Republic, supra note 81.

98 The records do not show the manner in which title was issued to the Heirs of Ciriaco Tirol.

99 Records, p. 179.

100 79 Phil. 461 (1947).

101 Supra note 64.

102 Supra note 54.

103 Supra note 88.

104 Art. XIII, Sec. 1.

105 Krivenko v. Register of Deeds of Manila, supra note 100, at 468-469.

106 Act No. 926, Sec. 54, par. 6 states:

SEC. 54. The following described persons or their legal successors in right,
occupying lands in the Philippines, or claiming to own any such land or interest
therein but whose titles to such land have not been perfected may apply to the Court
of Land Registration of the Philippine Islands for confirmation of their claims and the
issuance of a certificate of title therefor to wit –

xxxx

(6) All persons who by themselves or their predecessors in interest have been in the
open, continuous exclusive, and notorious possession and occupation of agricultural
public lands, as defined by said Act of Congress of July first, nineteen hundred and
two, under a bona fide claim of ownership except as against the Government, for a
period of ten years next preceding the taking effect of this act, except when
prevented by war, or force majeure, shall be conclusively presumed to have
performed all the conditions essential to a Government grant and to have received
the same, and shall be entitled to a certificate of title to such land under the
provisions of this chapter.
107 Supra note 47.

107-a G.R. No. 135385, December 6, 2000, 347 SCRA 128.

108 Collado v. Court of Appeals, id. at 356.

109 Records, p. 101; Annex "A."

110 Id. at 106; Exhibit "1-a."

111 Rollo (G.R. No. 173775), p. 5.

Constitution (1987), Art. XII, Sec. 3; Constitution (1973), Art. XIV, Sec. 10, as amended;
112

and Constitution (1935), Art. XIII, Sec. 1.

113 Republic v. Naguiat, supra note 87.

114 G.R. No. L-27873, November 29, 1983, 126 SCRA 69.

115 Heirs of Amunategui v. Director of Forestry, id. at 75.

Republic v. Court of Appeals, G.R. No. L-56948, September 30, 1987, 154 SCRA 476,
116

482-483.

117 Sec. 3 provides:

Establishment of or low-density human settlements in private lands, or subdivisions, if any,

subject to prior approval by the Ministry of Human Settlements, PTA and local building
officials; Provided, that no structures shall be constructed within 30 meters from the
shorelines.

118 Sec. 5 states:

Subsistence farming, in areas declared as alienable and disposable by the Bureau of Forest
Development.

119 Pars. 3-4.

SEC. 6. The President, upon recommendation of the Secretary of Agriculture and

120

Commerce (now the Secretary of the Department of Environment and Natural Resources),
shall from time to time classify lands of the public domain into –

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands,

And may at any time and in a like manner transfer such lands from one class to
another, for the purposes of their administration and disposition.
 SEC. 7. For the purposes of administration and disposition of alienable or disposable
public lands, the President, upon recommendation by the Secretary of Agriculture
and Commerce (now the Secretary of the Department of Environment and Natural
Resources), shall from time to time declare what lands are open to disposition or
concession under this Act.

Director of Lands v. Intermediate Appellate Court, supra note 47; Manalo v. Intermediate
121

Appellate Court, G.R. No. 64753, April 26, 1989, 172 SCRA 795.

Republic v. Register of Deeds of Quezon, G.R. No. 73974, May 31, 1995, 244 SCRA
122

537; Director of Lands v. Intermediate Appellate Court, supra note 47.

Director of Lands v. Intermediate Appellate Court, supra note 47, citing Yngson v.
123

Secretary of Agriculture and Natural Resources, G.R. No. L-36847, July 20, 1983, 123 SCRA
441; Republic v. Court of Appeals, G.R. No. L-45202, September 11, 1980, 99 SCRA 742.

124
Supra note 81.

Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca v.
125

Republic, id. at 222-223.

Reconsideration of DOJ Opinion No. 169, s. 1993, on the DOJ affirmative stand on
126

whether the prohibition against the reclassification of forest lands applies to "unclassified
public forest."

127 Rollo (G.R. No. 173775), p. 139.

Del Rosario-Igtiben v. Republic, G.R. No. 158449, October 22, 2004, 441 SCRA
128

188; Republic v. Lao,supra note 83.

129 Public Land Act, Sec. 48(b).

130 Public Estates Authority v. Court of Appeals, supra note 69.

131
Commonwealth Act No. 141, Chapter IV.

132 Id., Chapter V.

133House Bill No. 1109. Declaring Certain Parcels of the Public Domain Within Boracay
Island, Malay, Aklan as Agricultural Land Open to Disposition.

G.R. No. L-24796, June 28, 1968, 23 SCRA 1183, cited in Lepanto Consolidated Mining
134

Company v. Dumyung, G.R. Nos. L-31666-68, April 30, 1979, 89 SCRA 532.

135 Director of Forestry v. Muñoz, id. at 1214.

G.R. No. 152570 September 27, 2006

SAAD AGRO-INDUSTRIES, INC., petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

x------------------------------------------------x

PEDRO URGELLO, intervenor-appellant.

DECISION

TINGA, J.:

The instant petition for review assails the Decision and Resolution of the Court of Appeals dated 18
July 2001 and 18 March 2002 in CA-G.R. CV No. 64097, reversing and setting aside the Decision of
the Regional Trial Court of Cebu, Branch 11, Cebu City in Civil Case No. CEB-17173.

The antecedents follow.

On 18 October 1967, Socorro Orcullo (Orcullo) filed her application for Free Patent for Lot No. 1434
of Cad-315-D, a parcel of land with an area of 12.8477 hectares located in Barangay Abugon,
Sibonga, Cebu. Thereafter, on 14 February 1971, the Secretary of Agriculture and Natural
Resources issued Free Patent No. 473408 for Lot No. 1434, while the Registry of Deeds for the
Province of Cebu issued Original Certificate of Title (OCT) No. 0-6667 over the said
lot.1 Subsequently, the subject lot was sold2 to SAAD Agro- Industries, Inc. (petitioner) by one of
Orcullo's heirs.

Sometime in 1995, the Republic of the Philippines, through the Solicitor General, filed a
complaint3 for annulment of title and reversion of the lot covered by Free Patent No. 473408 and
OCT No. 0-6667 and reversion of Lot No. 1434 of Cad-315-D to the mass of the public domain, on
the ground that the issuance of the said free patent and title for Lot No. 1434 was irregular and
erroneous, following the discovery that the lot is allegedly part of the timberland and forest reserve of
Sibonga, Cebu. The discovery was made after Pedro Urgello filed a letter-complaint with the
Regional Executive Director of the Forest Management Sector, Department of Environment and
Natural Resources (DENR) Region VII, Cebu City, about the alleged illegal cutting of mangrove
trees and construction of dikes within the area covered by Urgello's Fishpond Lease Agreement.4 On
14 July 1995, Urgello filed a complaint-in-intervention against the heirs of Orcullo, adopting the
allegations of respondent.5 However, the heirs failed to file their answer to the complaint and were
thus declared in default.6

In its Decision7 dated 15 May 1999, the trial court dismissed the complaint, finding that respondent
failed to show that the subject lot is part of the timberland or forest reserve or that it has been
classified as such before the issuance of the free patent and the original title. According to the trial
court, the issuance of the free patent and title was regular and in order, and must be accorded full
faith. Considering the validity of the free patent and the OCT, petitioner's purchase of the property
was also declared legal and valid. The trial court also denied the complaint-in-intervention filed by
Urgello.

On appeal, the Court of Appeals in its Decision8 reversed and set aside the trial court's judgment. It
held that timber or forest lands, to which the subject lot belongs, are not subject to private
ownership, unless these are first classified as agricultural lands. Thus, absent any declassification of
the subject lot from forest to alienable and disposable land for agricultural purposes,9 the officers
erred in approving Orcullo's free patent application and in issuing the OCT; hence, title to the lot
must be cancelled.10 Consequently, the Court of Appeals invalidated the sale of the lot to petitioner.
However, it declared that Urgello's Fishpond Lease Agreement may continue until its expiration
because lease does not pass title to the lessee; but thereafter, the lease should not be renewed.
Accordingly, the Court of Appeals decreed:

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE and
another one issued declaring Free Patent No. 473408 and the corresponding OCT [No.] 0-
6667 as NULL and VOID ab initio.

SAAD Agro-Industries, Inc. is directed to surrender the owner's duplicate copy of OCT [No.]
0-6667 to the Register of Deeds of Cebu City.

The Register of Deeds of Cebu City is hereby ordered to cancel OCT [No.] 0-6667 and all
other transfer certificates of title that may have been subsequently issued.

Lot No. 1434, CAD 315[-]D located at Barangay Abugon, Sibonga, Cebu, subject matter of
this case, is hereby REVERTED as part of [the] public domain and to be classified as
timberland.11

Petitioner's motion for reconsideration, claiming insufficiency of evidence and failure to consider
pertinent laws, proved futile as it was dismissed for lack of merit. The Court of Appeals categorically
stated that there was a preponderance of evidence showing that the subject lot is within the
timberland area.12

Petitioner now claims that the Court of Appeals erred in relying on the DENR officer's testimony. It
claims that the testimony was a mere opinion to the effect that if there was no classification yet of an
area, such area should be considered as a public forest. Such opinion was premised on the officer's
construction of a provision of Presidential Decree (P.D.) No. 705, otherwise known as the Revised
Forestry Code,13 the pertinent portion of which reads:

Those still to be classified under the present system shall continue to remain as part of the
public forest.14

Petitioner points out that P.D. No. 705 took effect on 19 May 1975, or long after the issuance of the
free patent and title in question. Thus, the provision stating that all public lands should be considered

as "part of the public forests" until a land classification team has declassified them is applicable only
after the effectivity of P.D. No. 705 and cannot be made retroactive to cover and prejudice vested
rights acquired prior to the effectivity of said law, petitioner concludes.15 It adds that if the subject lot
was encompassed by the term "public forest," the same should have been designated as a
"Timberland Block," not as Cadastral Lot No. 1434, CAF-315-D, Sibonga Cadastre which was the
designation made by the Republic prior to 1972.16

Petitioner also questions the Court of Appeals' reliance on the land classification map (L.C. Map)
presented by respondent. The trial court had previously declared L.C. Map No. 2961 as
inadmissible, finding that "the plaintiff has not duly proved the authenticity and contents." According
to petitioner, the L.C. Map presented in court is neither a certified true copy nor one attested to be a
true copy by any DENR official having legal custody of the original thereof, and thus should not have
been made the basis of the cancellation of the free patent and title.17
Petitioner further contends that the projection survey conducted by the DENR to determine if the
subject lot falls within the forest area "is not clear, precise and conclusive," since the foresters who
conducted the survey used a magnetic box compass, an unreliable and inaccurate instrument,
whose results are easily affected by high tension wires and stones with iron minerals.18

Finally, petitioner claims that respondent failed to overcome the presumption of regularity of the
issuance of the free patent and title in favor of Socorro Orcullo.

In sum, petitioner asserts that respondent failed to show that the subject lot is inside the timberland
block, thereby casting doubt on the accuracy of the survey conducted by the Bureau of Forestry and
the opinions of DENR officers. Since respondent is the original plaintiff in the reversion case, the
burden is on it to prove that the subject lot is part of the timberland block, petitioner adds.

There is merit in the petition.

Under the Regalian doctrine or jura regalia, all lands of the public domain belong to the State, and
the State is the source of any asserted right to ownership in land and charged with the conservation
of such patrimony.19 Under this doctrine, lands not otherwise appearing to be clearly within private
ownership are presumed to belong to the State.20 In instances where a parcel of land considered to
be inalienable land of the public domain is found under private ownership, the Government is
allowed by law to file an action for reversion,21 which is an action where the ultimate relief sought is
to revert the land to the government under the Regalian doctrine. Considering that the land subject
of the action originated from a grant by the government, its cancellation is a matter between the
grantor and the grantee.22

It has been held that a complaint for reversion involves a serious controversy, involving a question of
fraud and misrepresentation committed against the government and it is aimed at the return of the
disputed portion of the public domain. It seeks to cancel the original certificate of registration, and
nullify the original certificate of title, including the transfer certificate of title of the successors-in-
interest because the same were all procured through fraud and misrepresentation.23 Thus, the State,
as the party alleging the fraud and misrepresentation that attended the application of the free patent,
bears that burden of proof. Fraud and misrepresentation, as grounds for cancellation of patent and
annulment of title, should never be presumed but must be proved by clear and convincing evidence,
mere preponderance of evidence not even being adequate.24

It is but judicious to require the Government, in an action for reversion, to show the details attending
the issuance of title over the alleged inalienable land and explain why such issuance has deprived
the State of the claimed property.

In the instant case, the Solicitor General claimed that "Free Patent No. 473408 and Original
Certificate of Title No. 0-6667 were erroneously and irregularly obtained as the Bureau of Lands
(now Lands Management Bureau) did not acquire jurisdiction over the land subject thereof, nor has it
the power and authority to dispose of the same through [a] free patent grant, hence, said patent and
title are null and void ab initio."25 It was incumbent upon respondent to prove that the free patent and
original title were truly erroneously and irregularly obtained. Unfortunately, respondent failed to do
so.

The Court finds that the findings of the trial court rather than those of the appellate court are more in
accord with the law and jurisprudence.

In concluding that the subject parcel of land falls within the timberland or forest reserve, the Court of
Appeals relied on the testimony of Isabelo R. Montejo that as it had remained unclassified until 1980
and consequently became an unclassified forest zone, it was incapable of private appropriation. The
pertinent portions of Montejo's testimony read:

Q: And in that particular [R]evised Forestry Code, there is that statement that unless
classified by a land classification team, an area can never be released.

A: Yes sir.

xxx

Q: Prior to 1980, there was no classification was [sic] ever of the lands of the public domain
in the town of Sibonga?

A: Yes, sir.

Q: In other words, nobody knew in the whole DNR before and now DENR what areas were
timberland and what areas are not timberland in the town of Sibonga prior to 1980?

A: Yes, sir, that is why the law states that if there is no classification should be [sic]
considered as the public forest in order to protect the resources.26

Obviously, respondent's counsel and witness were referring to P.D. No. 705 particularly Section 13
thereof which reads:

CHAPTER II

CLASSIFICATION AND SURVEY

SEC. 13. System of Land Classification.—The Department Head shall study, devise,
determine and prescribe the criteria, guidelines and methods for the proper and accurate
classification and survey of all lands of the public domain into agricultural, industrial or
commercial, residential, settlement, mineral, timber or forest, and grazing lands, and into
such other classes as now or may hereafter be provided by law, rules and regulations.

In the meantime, the Department Head shall simplify through inter-bureau action the present
system of determining which of the unclassified lands of the public domain are needed for
forest purposes and declare them as permanent forest to form part of the forest reserves. He
shall declare those classified and determined not to be needed for forest purposes as
alienable and disposable lands, the administrative jurisdiction and management of which
shall be transferred to the Bureau of Lands: Provided, That mangrove and other swamps not
needed for shore protection and suitable for fishpond purposes shall be released to, and be
placed under the administrative jurisdiction and management of, the Bureau of Fisheries and
Aquatic Resources. Those still to be classified under the Present system shall continue
to remain as part of the public forest. (Emphasis supplied.)

Reliance on this provision is highly misplaced. P.D. No. 705 was promulgated only on 19 May 1975,
or four (4) years after the free patent and title were awarded to Orcullo. Thus, it finds no application
in the instant case. Prior forestry laws, including P.D. No. 389,27 which was revised by P.D. No. 705,
does not contain a similar provision. Article 4 of the Civil Code provides that "laws shall have no
retroactive effect unless the contrary is provided." The Court does not infer any intention on the part
of then President Marcos to ordain the retroactive application of Sec. 13 of P.D. No. 705. Thus, even
assuming for the nonce that subject parcel was unclassified at the time Orcullo applied for a free
patent thereto, the fact remains that when the free patent and title were issued thereon in 1971,
respondent in essence segregated said parcel from the mass of public domain. Thus, it can no
longer be considered unclassified and forming part of the public forest as provided in P.D. No. 705.

Respondent's main basis for asserting that the subject lot is part of the timberland or forest reserve
is a purported L.C. Map No. 2961.28 However, at the hearing on 6 June 1997, the trial court denied
admission of the map for the purpose of showing that the subject lot falls within a timberland reserve
after respondent had failed to submit either a certified true copy or an official publication
thereof.29 The Court observes that the document adverted to is a mere photocopy of the purported
original, and not the blue print as insisted by respondent.30 A mere photocopy does not qualify as
competent evidence of the existence of the L.C. Map. Under the best evidence rule, the original
document must be produced, except:

1. When the original has been lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;

2. When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;

3. When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them
is only the general result of the whole; and

4. When the original is a public record in the custody of a public officer or is recorded in a
public office.31

In this case, respondent claims that the presentation of the original L.C. Map is unnecessary since it
is in the custody of a public officer or is recorded in the public office.32 Evidence, indeed, is
admissible when the original of a document is in the custody of a public officer or is recorded in a
public office. However, to prove its contents, there is a need to present a certified copy issued by the
public officer in custody thereof.33 In addition, while the L.C. Map may be considered a public
document and prima facie evidence of the facts stated therein,34 the map, to be admissible for any
purpose, must be evidenced by an official publication thereof or by a copy attested by the officer
having legal custody of the record.35

The rules of admissibility must be applied uniformly. The same rule holds true when the Government
is one of the parties. The Government, when it comes to court to litigate with one of its citizens, must
submit to the rules of procedure and its rights and privileges at every stage of the proceedings are
substantially in every respect the same as those of its citizens; it cannot have a superior advantage.
This is so because when a sovereignty submits itself to the jurisdiction of the court and participates
therein, its claims and rights are justiciable by every other principle and rule applicable to the claims
and rights of the private parties under similar circumstances.36 Failure to abide by the rules on
admissibility renders the L.C. Map submitted by respondent inadmissible as proof to show that the
subject lot is part of the forest reserve.

Some officers from the CENRO office in Argao, Cebu testified that they personally saw the subject
lot and that it falls within the timberland or forest reserve. Ultimately, however, the basis of their
declaration is the L.C. Map which respondent failed to present in accordance with the rules on
admissibility. Two foresters in fact testified that the subject lot was a mangrove area.37 The foresters
who conducted the survey may have been competent and their techniques reliable; nevertheless,
the observation that mangroves grow in the subject lot is not conclusive as to the nature of the land
at present or at the time the free patent and title were issued. Assuming that the area is covered by
mangroves when they surveyed it, there is no proof that it was not planted with trees and crops at
the time Orcullo applied for free patent. Respondent was also unable to establish that the subject lot
has "very deep and muddy soil" or are "mudflats," such that it is unsuitable for fruit and non-fruit
bearing trees.38 Yet these are factual matters which the Court does not generally delve into. As it is,
a mere declaration from the said officers, without any other supporting evidence, is not sufficient to
establish that the area in question is part of the forest reserve.

Even assuming that the L.C. Map submitted by respondent is admissible in evidence, still the land in
question can hardly be considered part of the timberland or forest reserve. L.C. Map No. 2961,
which purports to be the "correct map of the areas demarcated as permanent forest pursuant of the
provisions of P.D. No. 705 as amended"39 was made only in 1980. Thus, the delineation of the areas
was made nine (9) years after Orcullo was awarded the free patent over the subject lot.

In Republic v. Court of Appeals,40 the Court, finding that the disputed land was classified as
timberland 25 years after private individuals had commenced their continuous possession and
cultivation thereof in good faith, declared that they have the better right. The Court held:

It is not disputed that the aforesaid Land Classification Project No. 3, classifying the 22-
hectare area as timberland, was certified by the Director of Lands only on December 22,
1924, whereas the possession thereof by private respondents and their predecessor-in-
interest commenced as early as 1909. While the Government has the right to classify
portions of public land, the primary right of a private individual who possessed and
cultivated the land in good faith much prior to such classification must be recognized
and should not be prejudiced by after-events which could not have been anticipated.
Thus, We have held that the Government, in the first instance may, by reservation,
decide for itself what portions of public land shall be considered forestry
land, unless private interests have intervened before such reservation is
made.41 (Emphasis supplied.)

Obviously, private interests have intervened before classification was made pursuant to P.D. No.
705. Not only has Orcullo by herself and through her predecessors-in-interest cultivated and
possessed the subject lot since 1930, a free patent was also awarded to her and a title issued in her
name as early as 1971. In fact, it appears that the issuance of the free patent and certificate of title
was regular and in order. Orcullo complied with the requisites for the acquisition of free patent
provided under Commonwealth Act No. 141 (Public Land Act), as certified by the Director of Lands
and approved by the Secretary of Agriculture and Natural Resources.42

Besides, the records do not show that respondent has considered the lot in question as forest
reserve prior to the issuance of Free Patent No. 473408 and OCT No. 0-6667. To declare the land
now as forest land on the authority of L.C. Map No. 2961 approved only in 1980, and opinions based
on the said map, would unduly deprive petitioner of their registered property.

The Regalian doctrine is well-enshrined not only in the present Constitution, but also in the 1935 and
1973 Constitutions. The Court has always recognized and upheld the Regalian doctrine as the basic
foundation of the State's property regime. Nevertheless, in applying this doctrine, we must not lose
sight of the fact that in every claim or right by the Government against one of its citizens, the
paramount considerations of fairness and due process must be observed. Respondent in this case
failed to show that the subject lot is part of timberland or forest reserve it adverted to. In the face of
the uncontroverted status of Free Patent No. 473408 and OCT No. 0-6667 as valid and regular
issuances, respondent's insistence on the classification of the lot as part of the forest reserve must
be rejected.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated 16 July 2001
and the Resolution dated 18 March 2002 are REVERSED and SET ASIDE. The Decision of the
Regional Trial Court dated 15 May 1999 dismissing the complaint for reversion and the complaint-in-
intervention is REINSTATED.

SO ORDERED.

Quisumbing, Chairperson, Carpio, Carpio-Morales, Velasco, Jr., J.J., concur.

Footnotes

1 Records, pp. 234-236.

2 Id. at 26, Amended Complaint.

3Docketed as Civil Case No. CEB-17173, entitled "Republic of the Philippines represented
by the Director, Lands Management Bureau v. The Heirs of the Late Socorro Orcullo, SAAD
Agro-Industries, Inc. and the Register of Deeds of Cebu," raffled to Branch 11, RTC Cebu
City, presided by Judge Isaias Dicdican.

4Fishpond Lease Agreement No. 4622, issued by the Ministry of Agriculture and Natural
Resources, was dated 29 October 1986 and had a period of 25 years. The lease covers
12,8477 hectares of land located in Sitio Abugon, Barrio Candaguit, Sibonga, Cebu. It
appears that the area covered by the lease is the same area included in Free Patent No.
473408.

5 Records, pp. 15-17.

6 Id. at 69.

7 Rollo, pp. 90-100.

8Penned by Associate Justice Eugenio S. Labitoria, concurred in by Associate Justices Eloy

R. Bello, Jr. and Perlita J. Tria Tirona.

9In his testimony, Isabelo R. Montejo, Community Environment and Natural Resources
Officer (CENRO) for Argao, Cebu, stated that there was no classification of the land of the
public domain in Sibonga, Cebu prior to 1980, and thus the subject lot remained an
unclassified forest zone and incapable of private appropriation. TSN, 8 November 1996, pp.
13-15.

10 Rollo, p. 73.

11 Id. at 74. Decision of the Court of Appeals.

12 Resolution dated 18 March 2002, rollo, PP. 86-88.

13 Promulgated on 19 May 1975.

14 Presidential Decree No. 705 (1975), Sec. 13.

15 Rollo, p. 216.

16 Id. at 51-52.

17 Id. at 52.

18 Id. at 53.

Sps. Reyes v. Court of Appeals, 356 Phil. 606, 624, citing Director of Lands v. Intermediate
19

Appellate Court, 219 SCRA 340.

20 Id.

21 Commonwealth Act No. 141, The Public Land Act, (year of effectivity).

Section 101.—All lands for the reversion to the Government of lands of the public domain or
improvements thereon shall be instituted by the Solicitor-General or the officer acting in his
stead, in the proper courts, in the name of the Commonwealth of the Philippines.

22 Caro v. Sucaldito, G.R. No. 157536, 16 May 2005, 458 SCRA 595, 605.

23 Morandarte v. Court of Appeals, G.R. No. 123586, 12 August 2004, 436 SCRA 213, 223,
citing Republic v. Sebastian, 166 SCRA 140, 144 (1998).

24 Id.

25 Records, Amended Complaint, pp. 22-29, 27.

26 TSN, 8 November 1996, pp. 13-15.

27Otherwise known as the Forestry Reform Code of the Philippines, promulgated on 5

February 1974.

28 Copy of L.C. Map 2961, records, p. 318.

29 Records, p. 160.

30In its Comment, respondent argues that "It was the blue print of the Land Classification
(L.C.) Map No. 2961 that was presented in court. Rollo, p. 173.

31 Rules of Court, Rule 130, Sec. 3.

32 Rollo, p. 173.

33 Rules of Court, Rule 130, Sec. 7.

34 Rules of Court, Rule 132, Sec. 23.

35 Rules of Court, Rule 132, Sec. 24.

36National Housing Authority v. Baello, G.R. No. 143230, 20 August 2004, 437 SCRA 86,
106, citing Carr v. United States, 98 U.S. 433 (1878).

37 TSN, 8 November 1996, p. 5; TSN, 8 November 1996, p. 6.

38According to respondent these plants do not thrive on mangrove swamps, which are "very
deep and muddy soil with additive or are mudflat, " citing TSN, 8 November 1996, pp. 6 and
16; rollo, p. 174..

39
Records, p. 317.

40 No. L-46048, 29 November 1988, 168 SCRA 77.

41 Id. at 83-84, citing Ankron v. Government of the Philippine Islands, 40 Phil. 10, 16 (1919).

42 Records, p. 234.
Republic Act 8171
AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO WOMEN WHO HAVE
LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND OF
NATURAL-BORN FILIPINOS.

Section 1. Filipino women who have lost their Philippine citizenship by marriage to aliens
and natural-born Filipinos who have lost their Philippine citizenship, including their minor
children, on account of political or economic necessity, may reacquire Philippine citizenship
through repatriation in the manner provided in Section 4 of Commonwealth Act No. 63, as
amended: Provided, That the applicant
is not a:

(1) Person opposed to organized government or affiliated with any association or group
of persons who uphold and teach doctrines opposing organized government;
(2) Person defending or teaching the necessity or propriety of violence, personal assault,
or associatEon for the predominance of their ideas;
(3) Person convictad of crimes involving moral turpitude; or
(4) Person suffering from mental alienation or incurablecontagious diseases.

Sec. 2. Repatriation shall be effected by taking the necessary oath of allegiance to the
Republic of the Philippines and registration in the proper civil registry and in the Bureau or
Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien
certificate of registration and issue the certificate of identification as Filipino citizen to the
repatriated citizen.

Sec. 3. All laws, decrees, orders, rules and regulations, or parts thereof inconsistent with
this Act are hereby repealed or amended accordingly.

Sec. 4. This Act shall take effect thirty (30) days after its publication in a newspaper of
general circulation.
Republic Act No. 9225 August 29, 2003

AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN

CITIZENSHIP PERMANENT.
AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63, AS AMENDED AND FOR
OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:

Section 1. Short Title – this act shall be known as the "Citizenship Retention and Re-acquisition
Act of 2003."

Section 2. Declaration of Policy - It is hereby declared the policy of the State that all Philippine
citizens of another country shall be deemed not to have lost their Philippine citizenship under the
conditions of this Act.

Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary

notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign
country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath
of allegiance to the Republic:

"I _____________________, solemny swear (or affrim) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I
recognize and accept the supreme authority of the Philippines and will maintain true faith and
allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental
reservation or purpose of evasion."

Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a
foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.

Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of
this Act shall be deemed citizenship of the Philippines.

Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:

(1) Those intending to exercise their right of surffrage must Meet the requirements under
Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The
Overseas Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public in the Philippines shall meet the qualification for holding
such public office as required by the Constitution and existing laws and, at the time of the
filing of the certificate of candidacy, make a personal and sworn renunciation of any and all
foreign citizenship before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to
the Republic of the Philippines and its duly constituted authorities prior to their assumption of
 office: Provided, That they renounce their oath of allegiance to the country where they took
that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper
authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot
be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they
are naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed

forces of the country which they are naturalized citizens.

Section 6. Separability Clause - If any section or provision of this Act is held unconstitutional or
invalid, any other section or provision not affected thereby shall remain valid and effective.

Section 7. Repealing Clause - All laws, decrees, orders, rules and regulations inconsistent with the
provisions of this Act are hereby repealed or modified accordingly.

Section 8. Effectivity Clause – This Act shall take effect after fifteen (15) days following its
publication in theOfficial Gazette or two (2) newspaper of general circulation.

Approved,

FRANKLIN DRILON JOSE DE VENECIA JR.

President of the Senate Speaker of the House of
Representatives

This Act, which is a consolidation of Senate Bill No. 2130 and House Bill No. 4720 was finally
passed by the the House of Representatives and Senate on August 25, 2003 and August 26, 2003,
respectively.

OSCAR G. YABES ROBERTO P. NAZARENO

Secretary of Senate Secretary General
House of Represenatives

Approved: August 29, 2003

GLORIA MACAPAGAL-ARROYO
President of the Philippines
G.R. No. 161434 March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners,

vs.
The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE,
JR.) and VICTORINO X. FORNIER, respondents.

x-----------------------------x

G.R. No. 161634 March 3, 2004

ZOILO ANTONIO VELEZ, petitioner,

vs.
RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.

x-----------------------------x

G. R. No. 161824 March 3, 2004

VICTORINO X. FORNIER, petitioner,

vs.
HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS
FERNANDO POE JR., respondents.

DECISION

VITUG, J.:

Citizenship is a treasured right conferred on those whom the state believes are deserving of
the privilege. It is a "precious heritage, as well as an inestimable acquisition,"1 that cannot be
taken lightly by anyone - either by those who enjoy it or by those who dispute it.

Before the Court are three consolidated cases, all of which raise a single question of profound
importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a
presidential candidate to hold the highest office of the land. Our people are waiting for the judgment
of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the
main contenders for the presidency, a natural-born Filipino or is he not?

The moment of introspection takes us face to face with Spanish and American colonial roots and
reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid
of laws and jurisprudence that could be no less than distinctly Filipino.

Antecedent Case Settings

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr.
(hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of
the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming
national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born
citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of
birth to be 20 August 1939 and his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus
Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.,
Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the
Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his
certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate
of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his
parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe,
was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner
asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino
citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the
allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a
prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if
no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of
respondent.

In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support
of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a
certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her
having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after
discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit
aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued
by the Director of the Records Management and Archives Office, attesting to the fact that there was
no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the
Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of
the National Archives to the effect that no available information could be found in the files of the
National Archives regarding the birth of Allan F. Poe.

On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant
ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National
Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the
registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the
Archives Division of the National Archives that no available information about the marriage of Allan
F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original
Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name
of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in
the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the
purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued
by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said
office during the period of from 1900 until May 1946 were totally destroyed during World War II.

On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later,
or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06
February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of
the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised
Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary
restraining order, a writ of preliminary injunction or any other resolution that would stay the finality
and/or execution of the COMELEC resolutions.

The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434,
entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections,
Ronald Allan Kelley Poe (a.k.a. ‘Fernando Poe, Jr.’), and Victorino X. Fornier," and the other,
docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a.
Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under
Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original
and exclusive jurisdiction to resolve the basic issue on the case.

Jurisdiction of the Court

In G. R. No. 161824

In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course
to or cancel FPJ’s certificate of candidacy for alleged misrepresentation of a material fact (i.e., that
FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the
Omnibus Election Code –

"Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false" –

in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus
Election Code -

"Section 52. Powers and functions of the Commission on Elections. In addition to the powers
and functions conferred upon it by the Constitution, the Commission shall have exclusive
charge of the enforcement and administration of all laws relative to the conduct of elections
for the purpose of ensuring free, orderly and honest elections" -

and in relation to Article 69 of the Omnibus Election Code which would authorize "any
interested party" to file a verified petition to deny or cancel the certificate of candidacy of any
nuisance candidate.

Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per
Rule 642 in an action for certiorari under Rule 653 of the Revised Rules of Civil Procedure. Section 7,
Article IX, of the 1987 Constitution also reads –

"Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A
case or matter is deemed submitted for decision or resolution upon the filing of the last
pleading, brief, or memorandum, required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty days from receipt of a copy thereof."

Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in
one Supreme Court and in such lower courts as may be established by law which 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."

It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and
could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our
people of their fundamental right to be fully informed, and to make a proper choice, on who could or
should be elected to occupy the highest government post in the land.

In G. R. No. 161434 and G. R. No. 161634

Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the
provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction
of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to
instead take on the petitions they directly instituted before it. The Constitutional provision cited
reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas,4 as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try,
Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-
Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793
designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of
the tribunal. Although the subsequent adoption of the parliamentary form of government under the
1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up,
nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.

Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election

contests consist of either an election protest or a quo warranto which, although two distinct
remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A
perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this
premise -

"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President of the Philippines.

"Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or
a petition for quo warranto against the President or Vice-President. An election protest shall
not include a petition for quo warranto. A petition for quo warranto shall not include an
election protest.

"Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President
of the Philippines who received the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may be, by filing a verified
petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner."

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election,
returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of
"candidates" for President or Vice-President. A quo warranto proceeding is generally defined as
being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public
office.5 In such context, the election contest can only contemplate a post-election scenario. In Rule
14, only a registered candidate who would have received either the second or third highest number
of votes could file an election protest. This rule again presupposes a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of
the 1987 Constitution, would not include cases directly brought before it, questioning the
qualifications of a candidate for the presidency or vice-presidency before the elections are held.

Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on
Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe
a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction.

The Citizenship Issue

Now, to the basic issue; it should be helpful to first give a brief historical background on the concept
of citizenship.

Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384
to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and
in the holding of an office.6Aristotle saw its significance if only to determine the constituency of the
"State," which he described as being composed of such persons who would be adequate in number
to achieve a self-sufficient existence.7 The concept grew to include one who would both govern and
be governed, for which qualifications like autonomy, judgment and loyalty could be expected.
Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant
obligations, on the other.8 In its ideal setting, a citizen was active in public life and fundamentally
willing to submit his private interests to the general interest of society.

The concept of citizenship had undergone changes over the centuries. In the 18th century, the
concept was limited, by and large, to civil citizenship, which established the rights necessary for
individual freedom, such as rights to property, personal liberty and justice.9 Its meaning expanded
during the 19th century to include political citizenship, which encompassed the right to participate in
the exercise of political power.10 The 20th century saw the next stage of the development of social
citizenship, which laid emphasis on the right of the citizen to economic well-being and social
security.11 The idea of citizenship has gained expression in the modern welfare state as it so
developed in Western Europe. An ongoing and final stage of development, in keeping with the
rapidly shrinking global village, might well be the internationalization of citizenship.12

The Local Setting - from Spanish Times to the Present

There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or
"Spanish subjects."13 In church records, the natives were called 'indios', denoting a low regard for the
inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th
century but their sheer number made it difficult to point to one comprehensive law. Not all of these
citizenship laws of Spain however, were made to apply to the Philippine Islands except for those
explicitly extended by Royal Decrees.14

Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain
on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the
subject of differing views among experts;15 however, three royal decrees were undisputably made
applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,16 the Royal
Decree of 23 August 1868 specifically defining the political status of children born in the Philippine
Islands,17 and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made
applicable to the Philippines by the Royal Decree of 13 July 1870.18

The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the
express mandate of its Article 89, according to which the provisions of the Ultramar among which
this country was included, would be governed by special laws.19

It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which
came out with the first categorical enumeration of who were Spanish citizens. -

"(a) Persons born in Spanish territory,

"(b) Children of a Spanish father or mother, even if they were born outside of Spain,

"(c) Foreigners who have obtained naturalization papers,

"(d) Those who, without such papers, may have become domiciled inhabitants of any town of
the Monarchy."20

The year 1898 was another turning point in Philippine history. Already in the state of decline as a
superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power,
the United States. An accepted principle of international law dictated that a change in sovereignty,
while resulting in an abrogation of all political laws then in force, would have no effect on civil laws,
which would remain virtually intact.

The Treaty of Paris was entered into on 10 December 1898 between Spain and the United
States.21 Under Article IX of the treaty, the civil rights and political status of the native inhabitants of
the territories ceded to the United States would be determined by its Congress -

"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the
present treaty relinquishes or cedes her sovereignty may remain in such territory or may
remove therefrom, retaining in either event all their rights of property, including the right to
sell or dispose of such property or of its proceeds; and they shall also have the right to carry
on their industry, commerce, and professions, being subject in respect thereof to such laws
as are applicable to foreigners. In case they remain in the territory they may preserve their
allegiance to the Crown of Spain by making, before a court of record, within a year from the
date of the exchange of ratifications of this treaty, a declaration of their decision to preserve
such allegiance; in default of which declaration they shall be held to have renounced it and to
have adopted the nationality of the territory in which they reside.

Thus –

"The civil rights and political status of the native inhabitants of the territories hereby ceded to
the United States shall be determined by the Congress."22

Upon the ratification of the treaty, and pending legislation by the United States Congress on the
subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did
not become American citizens, they, however, also ceased to be "aliens" under American laws and
were thus issued passports describing them to be citizens of the Philippines entitled to the protection
of the United States.
The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902,
also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation
of the Congress of the United States on the Philippines -

".... that all inhabitants of the Philippine Islands continuing to reside therein, who were
Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their
children born subsequent thereto, shall be deemed and held to be citizens of the Philippine
Islands and as such entitled to the protection of the United States, except such as shall have
elected to preserve their allegiance to the Crown of Spain in accordance with the provisions
of the treaty of peace between the United States and Spain, signed at Paris, December tenth
eighteen hundred and ninety eight."23

Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the
Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken to
include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an
inhabitant who obtained Spanish papers on or before 11 April 1899.24

Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July
1902, during which period no citizenship law was extant in the Philippines. Weight was given to the
view, articulated in jurisprudential writing at the time, that the common law principle of jus soli,
otherwise also known as the principle of territoriality, operative in the United States and England,
governed those born in the Philippine Archipelago within that period.25 More about this later.

In 23 March 1912, the Congress of the United States made the following amendment to the
Philippine Bill of 1902 -

"Provided, That the Philippine Legislature is hereby authorized to provide by law for the
acquisition of Philippine citizenship by those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives of other insular possession of the United
States, and such other persons residing in the Philippine Islands who would become citizens
of the United States, under the laws of the United States, if residing therein."26

With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first
time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in
the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos."
In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions
of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 -

"That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day
of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their
children born subsequently thereto, shall be deemed and held to be citizens of the Philippine
Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain
in accordance with the provisions of the treaty of peace between the United States and
Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such
others as have since become citizens of some other country; Provided, That the Philippine
Legislature, herein provided for, is hereby authorized to provide for the acquisition of
Philippine citizenship by those natives of the Philippine Islands who do not come within the
foregoing provisions, the natives of the insular possessions of the United States, and such
other persons residing in the Philippine Islands who are citizens of the United States, or who
could become citizens of the United States under the laws of the United States, if residing
therein."
Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the
Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the
Philippines on said date, and, 3) since that date, not a citizen of some other country.

While there was, at one brief time, divergent views on whether or not jus soli was a mode of
acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by
adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino
citizenship -

"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -

"(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution

"(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this
Constitution, had been elected to public office in the Philippine Islands.

"(3) Those whose fathers are citizens of the Philippines.

"(4) Those whose mothers are citizens of the Philippines and upon reaching the age of
majority, elect Philippine citizenship.

"(5) Those who are naturalized in accordance with law."

Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at
the time, which provided that women would automatically lose their Filipino citizenship and acquire
that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the
women from transmitting their Filipino citizenship to their legitimate children and required illegitimate
children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority.
Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino
women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new
Constitution on citizenship to reflect such concerns -

"Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of
nineteen hundred and thirty-five.

"(4) Those who are naturalized in accordance with law."

For good measure, Section 2 of the same article also further provided that –

"A female citizen of the Philippines who marries an alien retains her Philippine citizenship,
unless by her act or omission she is deemed, under the law to have renounced her
citizenship."
The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for
subsection (3) thereof that aimed to correct the irregular situation generated by the questionable
proviso in the 1935 Constitution.

Section I, Article IV, 1987 Constitution now provides:

"The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and

"(4) Those who are naturalized in accordance with law."

The Case Of FPJ

Section 2, Article VII, of the 1987 Constitution expresses:

"No person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election,
and a resident of the Philippines for at least ten years immediately preceding such election."

The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine citizenship."27

The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the
1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli,
res judicata and jus sanguinis28 – had been in vogue. Only two, i.e., jus soli and jus sanguinis, could
qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of
Customs29 (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of
Roa in Tan Chong vs. Secretary of Labor30 (1947), jus sanguinis or blood relationship would now
become the primary basis of citizenship by birth.

Documentary evidence adduced by petitioner would tend to indicate that the earliest established
direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the
father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence,
his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan,
and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father
of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Español father, Lorenzo Pou,
and a mestiza Español mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a
supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936.
The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be
on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old,
unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an
American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to
Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-
one years old and married.
Considering the reservations made by the parties on the veracity of some of the entries on the birth
certificate of respondent and the marriage certificate of his parents, the only conclusions that could
be drawn with some degree of certainty from the documents would be that -

1. The parents of FPJ were Allan F. Poe and Bessie Kelley;

2. FPJ was born to them on 20 August 1939;

3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;

4. The father of Allan F. Poe was Lorenzo Poe; and

5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born
Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of
FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a
public officer. The documents have been submitted in evidence by both contending parties during
the proceedings before the COMELEC.

The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The
marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent.
The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last
two documents were submitted in evidence for respondent, the admissibility thereof, particularly in
reference to the facts which they purported to show, i.e., the marriage certificate in relation to the
date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of
Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who
had utilized those material statements in his argument. All three documents were certified true
copies of the originals.

Section 3, Rule 130, Rules of Court states that -

"Original document must be produced; exceptions. - When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document
itself, except in the following cases:

"x x x xxx xxx

"(d) When the original is a public record in the custody of a public office or is recorded in a
public office."

Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe
and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents.
Section 44, Rule 130, of the Rules of Court provides:

"Entries in official records. Entries in official records made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated."

The trustworthiness of public documents and the value given to the entries made therein could be
grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty
which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such
statements, and 4) the publicity of record which makes more likely the prior exposure of such errors
as might have occurred.31

The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age
of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born
sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue
that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such fact in the Records Management and
Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place
during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San
Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude,
or at least to presume, that the place of residence of a person at the time of his death was also his
residence before death. It would be extremely doubtful if the Records Management and Archives
Office would have had complete records of all residents of the Philippines from 1898 to 1902.

Proof of Paternity and Filiation

Under Civil Law.

Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to
the father [or mother]) or paternity (relationship or civil status of the father to the child) of an
illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules
under civil law must be used.

Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until
the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment
was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or
voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of
the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a
public document.32 Complementary to the new code was Act No. 3753 or the Civil Registry Law
expressing in Section 5 thereof, that -

"In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the
parents of the infant or only by the mother if the father refuses. In the latter case, it shall not
be permissible to state or reveal in the document the name of the father who refuses to
acknowledge the child, or to give therein any information by which such father could be
identified."

In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation
or paternity, the certificate was required to be signed or sworn to by the father. The failure of such
requirement rendered the same useless as being an authoritative document of recognition.33 In
Mendoza vs. Mella,34 the Court ruled -

"Since Rodolfo was born in 1935, after the registry law was enacted, the question here really
is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the
registry record, may be relied upon as sufficient proof of his having been voluntarily
recognized. No such reliance, in our judgment, may be placed upon it. While it contains the
names of both parents, there is no showing that they signed the original, let alone swore to
its contents as required in Section 5 of Act No. 3753. For all that might have happened, it
was not even they or either of them who furnished the data to be entered in the civil register.
Petitioners say that in any event the birth certificate is in the nature of a public document
 wherein voluntary recognition of a natural child may also be made, according to the same
Article 131. True enough, but in such a case, there must be a clear statement in the
document that the parent recognizes the child as his or her own."

In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was
the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to
have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition
remained to be "some other public document." In Pareja vs. Pareja,35 this Court defined what could
constitute such a document as proof of voluntary acknowledgment:

"Under the Spanish Civil Code there are two classes of public documents, those executed by
private individuals which must be authenticated by notaries, and those issued by competent
public officials by reason of their office. The public document pointed out in Article 131 as
one of the means by which recognition may be made belongs to the first class."

Let us leave it at that for the moment.

The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into
voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a
record of birth, a will, a statement before a court of record or in any authentic writing. Legal
acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was
recognized or judicially declared as natural. Compulsory acknowledgment could be demanded
generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to
claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the
heirs of the child, an action to claim acknowledgment, however, could only be brought during the
lifetime of the presumed parent.

Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be
an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable
writing of the father. The term would include a public instrument (one duly acknowledged before a
notary public or other competent official) or a private writing admitted by the father to be his.

The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide:

"Art. 172. The filiation of legitimate children is established by any of the following:

"(1) The record of birth appearing in the civil register or a final judgment; or

"(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

"(1) The open and continuous possession of the status of a legitimate child; or

"(2) Any other means allowed by the Rules of Court and special laws.

"Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime
and shall be transmitted to the heirs should the child die during minority or in a state of
insanity. In these cases, the heirs shall have a period of five years within which to institute
the action.
 "The action already commenced by the child shall survive notwithstanding the death of either
or both of the parties.

"x x x xxx x x x.

"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on
the same, evidence as legitimate children.

"The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent."

The provisions of the Family Code are retroactively applied; Article 256 of the code reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws."

Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:

"We hold that whether Jose was a voluntarily recognized natural child should be decided
under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that
'the voluntary recognition of a natural child shall take place according to this Code, even if
the child was born before the effectivity of this body of laws' or before August 30, 1950.
Hence, Article 278 may be given retroactive effect."

It should be apparent that the growing trend to liberalize the acknowledgment or recognition of
illegitimate children is an attempt to break away from the traditional idea of keeping well apart
legitimate and non-legitimate relationships within the family in favor of the greater interest and
welfare of the child. The provisions are intended to merely govern the private and personal affairs of
the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the
individual would also affect his political rights or, in general, his relationship to the State. While,
indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in
the context of private relations, the domain of civil law; particularly -

"Civil Law is that branch of law which has for its double purpose the organization of the
family and the regulation of property. It has thus [been] defined as the mass of precepts
which determine and regulate the relations of assistance, authority and obedience among
members of a family, and those which exist among members of a society for the protection of
private interests."37

In Yañez de Barnuevo vs. Fuster,38 the Court has held:

"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights
and duties, or to the status, condition and legal capacity of persons, govern Spaniards
although they reside in a foreign country; that, in consequence, 'all questions of a civil
nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile
of the husband and wife, their support, as between them, the separation of their properties,
the rules governing property, marital authority, division of conjugal property, the classification
of their property, legal causes for divorce, the extent of the latter, the authority to decree it,
and, in general, the civil effects of marriage and divorce upon the persons and properties of
 the spouses, are questions that are governed exclusively by the national law of the husband
and wife."

The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil
Code, stating that -

"Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad" -

that explains the need to incorporate in the code a reiteration of the Constitutional provisions on
citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil
Code,39 such as on successional rights and family relations.40 In adoption, for instance, an adopted
child would be considered the child of his adoptive parents and accorded the same rights as their
legitimate child but such legal fiction extended only to define his rights under civil law41 and not his
political status.

Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be
traced to the Spanish family and property laws, which, while defining proprietary and successional
rights of members of the family, provided distinctions in the rights of legitimate and illegitimate
children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth
were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by
foreign blood was paramount.

These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and
the invidious discrimination survived when the Spanish Civil Code became the primary source of our
own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law
and not unduly impede or impinge on the domain of political law.

The proof of filiation or paternity for purposes of determining his citizenship status should thus be
deemed independent from and not inextricably tied up with that prescribed for civil law purposes.
The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not
have preclusive effects on matters alien to personal and family relations. The ordinary rules on
evidence could well and should govern. For instance, the matter about pedigree is not necessarily
precluded from being applicable by the Civil Code or Family Code provisions.

Section 39, Rule 130, of the Rules of Court provides -

"Act or Declaration about pedigree. The act or declaration of a person deceased, or unable
to testify, in respect to the pedigree of another person related to him by birth or marriage,
may be received in evidence where it occurred before the controversy, and the relationship
between the two persons is shown by evidence other than such act or declaration. The word
`pedigree’ includes relationship, family genealogy, birth, marriage, death, the dates when
and the places where these facts occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree."

For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to
testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the
person whose pedigree is in question, (d) declaration must be made before the controversy has
occurred, and (e) the relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe
submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe,
recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his
children (including respondent FPJ) in one house, and as one family -

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton,
California, U.S.A., after being sworn in accordance with law do hereby declare that:

"1. I am the sister of the late Bessie Kelley Poe.

"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly
known in the Philippines as `Fernando Poe, Jr.,’ or `FPJ’.

"4. Ronald Allan Poe `FPJ’ was born on August 20, 1939 at St. Luke's Hospital, Magdalena
Street, Manila.

"x x x xxx xxx

"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were
students at the University of the Philippines in 1936. I was also introduced to Fernando Poe,
Sr., by my sister that same year.

"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

"9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan
and Fernando II, and myself lived together with our mother at our family's house on Dakota
St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some
months between 1943-1944.

"10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after
Ronald Allan Poe.

"x x x xxx xxx

"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is
a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr.

"Done in City of Stockton, California, U.S.A., this 12th day of January 2004.

Ruby Kelley Mangahas Declarant DNA Testing

In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to
obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child
and any physical residue of the long dead parent could be resorted to. A positive match would clear
up filiation or paternity. In Tijing vs. Court of Appeals,42 this Court has acknowledged the strong weight of
DNA testing -

"Parentage will still be resolved using conventional methods unless we adopt the modern and
scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for
identification and parentage testing. The University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using
short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person
has two (2) copies, one copy from the mother and the other from the father. The DNA from the
mother, the alleged father and the child are analyzed to establish parentage. Of course, being a
novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as
the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence.
For it was said, that courts should apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress."

Petitioner’s Argument For Jurisprudential Conclusiveness

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have
transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to
petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage
with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and
respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between
Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence
introduced by no less than respondent himself, consisting of a birth certificate of respondent and a
marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father
and an American mother who were married to each other a year later, or on 16 September 1940.
Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an
illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen,
basing his stand on the ruling of this Court in Morano vs. Vivo,43 citing Chiongbian vs. de Leo44 and
Serra vs. Republic.45

On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most
convincing; he states -

"We must analyze these cases and ask what the lis mota was in each of them. If the
pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would
be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement
was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter
dictum which did not establish doctrine. I therefore invite the Court to look closely into these
cases.

"First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It
was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a
Chinese father. The issue was whether the stepson followed the naturalization of the
stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the
naturalized stepfather.

"Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino
father. It was about a legitimate son of a father who had become Filipino by election to public
office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935
Constitution. No one was illegitimate here.

"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father.
Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was
whether one who was already a Filipino because of his mother who still needed to be
naturalized. There is nothing there about invidious jus sanguinis.
 "Finally, Paa vs. Chan.46 This is a more complicated case. The case was about the
citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his
father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin
therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court
said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The
Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither
was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not
even a Filipino.

"The Court should have stopped there. But instead it followed with an obiter dictum. The
Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be
Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary
to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure
and simple, simply repeating the obiter dictum in Morano vs. Vivo.

"x x x xxx xxx

"Aside from the fact that such a pronouncement would have no textual foundation in the
Constitution, it would also violate the equal protection clause of the Constitution not once but
twice. First, it would make an illegitimate distinction between a legitimate child and an
illegitimate child, and second, it would make an illegitimate distinction between the
illegitimate child of a Filipino father and the illegitimate child of a Filipino mother.

"The doctrine on constitutionally allowable distinctions was established long ago by People
vs. Cayat.47 I would grant that the distinction between legitimate children and illegitimate
children rests on real differences. x x x But real differences alone do not justify invidious
distinction. Real differences may justify distinction for one purpose but not for another
purpose.

"x x x What is the relevance of legitimacy or illegitimacy to elective public service? What
possible state interest can there be for disqualifying an illegitimate child from becoming a
public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive
the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate
child from holding an important public office is to punish him for the indiscretion of his
parents. There is neither justice nor rationality in that. And if there is neither justice nor
rationality in the distinction, then the distinction transgresses the equal protection clause and
must be reprobated."

The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor
Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of
petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail.

Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did
so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien
father in line with the assumption that the mother had custody, would exercise parental authority and
had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate
against him.

The fact of the matter – perhaps the most significant consideration – is that the 1935 Constitution,
the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be
more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that
among the citizens of the Philippines are "those whose fathers are citizens of the Philippines." There
utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none
provided.

In Sum –

(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the
petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules
of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged
grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003
which has prayed for the disqualification of respondent FPJ from running for the position of
President in the 10th May 2004 national elections on the contention that FPJ has committed
material representation in his certificate of candidacy by representing himself to be a natural-
born citizen of the Philippines.

(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No.
161434 and No. 161634 both having been directly elevated to this Court in the latter’s
capacity as the only tribunal to resolve a presidential and vice-presidential election contest
under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked
only after, not before, the elections are held.

(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been
committed by the COMELEC, it is necessary to take on the matter of whether or not
respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the
father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the
affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking
after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship
of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84
years old, Lorenzo would have been born sometime in the year 1870, when the Philippines
was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his
death in 1954, in the absence of any other evidence, could have well been his place of
residence before death, such that Lorenzo Pou would have benefited from the "en masse
Filipinization" that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou),
if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The
1935 Constitution, during which regime respondent FPJ has seen first light, confers
citizenship to all persons whose fathers are Filipino citizens regardless of whether such
children are legitimate or illegitimate.

(4) But while the totality of the evidence may not establish conclusively that respondent FPJ
is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in
his favor enough to hold that he cannot be held guilty of having made a material
misrepresentation in his certificate of candidacy in violation of Section 78, in relation to
Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his
case before the Court, notwithstanding the ample opportunity given to the parties to present
their position and evidence, and to prove whether or not there has been material
misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC,48 must not only
be material, but also deliberate and willful.

WHEREFORE, the Court RESOLVES to DISMISS –

1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.,
Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando
Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo
 Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,
Respondent," for want of jurisdiction.

2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on

Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show
grave abuse of discretion on the part of respondent Commission on Elections in dismissing
the petition in SPA No. 04-003.

No Costs.

SO ORDERED.

Davide, Jr., C.J., see separate opinion, concurring.

Puno, J., on leave but was allowed to vote; see separate opinion.
Panganiban, J., on official leave; allowed to vote but did not send his vote on the matter.
Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have been remanded.
Ynares-Santiago, J., concurs and also with J. Puno’s separate opinion.
Sandoval-Gutierrez, J., concurs, please see separate opinion.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., concurs, please see separate opinion.
Corona, J., joins the dissenting opinion of Justice Morales.
Carpio-Morales, J., see dissenting opinion.
Callejo, Sr., J., please see concurring opinion.
Azcuna, J., concurs in a separate opinion.
Tinga, J., dissents per separate opinion.

SEPARATE OPINION

DAVIDE, JR. C.J.:

The procedural and factual antecedents of these consolidated cases are as follows:

On 9 January 2004, petitioner Victorino X. Fornier filed with public respondent Commission on
Elections (COMELEC) a petition to disqualify private respondent Fernando Poe, Jr. (FPJ) and to
deny due course to or cancel his certificate of candidacy for the position of President in the
forthcoming 10 May 2004 presidential elections. As a ground therefore, he averred that FPJ
committed falsity in a material representation in his certificate of candidacy in declaring that he is a
natural-born Filipino citizen when in truth and in fact he is not, since he is the illegitimate son of
Bessie Kelley, an American citizen, and Allan Poe, a Spanish national. The case was docketed as
COMELEC Case SPA No. 04-003 and assigned to the COMELEC’s First Division.

At the hearing before the First Division of the COMELEC, petitioner Fornier offered FPJ’s record of
birth to prove that FPJ was born on 20 August 1939 to Bessie Kelley, an American citizen, and Allan
Poe, who was then married to Paulita Gomez. Upon the other hand, FPJ tried to establish that his
father was a Filipino citizen whose parents, although Spanish nationals, were Filipino citizens. He
adduced in evidence a copy of the marriage contract of Allan Poe and Bessie Kelley, showing that
they were married on 16 September 1940 in Manila.
In its Resolution of 23 January 2004, the First Division of the COMELEC dismissed COMELEC Case
SPA No. 04-003 for lack of merit. It declared that COMELEC’s jurisdiction is limited to all matters
relating to election, returns and qualifications of all elective regional, provincial and city officials, but
not those of national officials like the President. It has, however, jurisdiction to pass upon the issue
of citizenship of national officials under Section 78 of the Omnibus Election Code on petitions to
deny due course or cancel certificates of candidacy on the ground that any material representation
contained therein is false. It found that the evidence adduced by petitioner Fornier is not substantial,
and that FPJ did not commit any falsehood in material representation when he stated in his
certificate of candidacy that he is a natural-born Filipino citizen.

His motion for reconsideration filed before the COMELEC en banc having been denied, petitioner
Fornier filed a petition with this Court, which was docketed as G.R. No. 161824.

Meanwhile, petitioners Maria Jeanette C. Tecson and Felix B. Desiderio, Jr. came to this Court via a
special civil action for certiorari under Rule 65 of the Rules of Court, docketed as G.R. No. 161434,
to challenge the jurisdiction of the COMELEC over the issue of the citizenship of FPJ. They assert
that only this Court has jurisdiction over the issue in light of the last paragraph of Section 4 of Article
VII of the Constitution, which provides:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.

On 29 January 2004 petitioner Velez filed a similar petition, which was docketed as G.R. No.
161634.

The core issues in these consolidated cases, as defined by the Court during the oral argument, are
as follows:

(1) Whether the COMELEC has jurisdiction over petitions to deny due course to or cancel
certificates of candidacy of Presidential candidates;

(2) Whether the Supreme Court has jurisdiction over the petitions of (a) Tecson, et al., (b)
Velez, and (c) Fornier; and

(3) Whether respondent FPJ is a Filipino citizen, and if so, whether he is a natural-born
Filipino citizen.

These consolidated petitions must be dismissed.

Both the petitions of Tecson and Velez invoke the jurisdiction of this Court as provided for in the last
paragraph of Section 4 of Article VII of the Constitution, and raise the issue of the ineligibility of a
candidate for President on the ground that he is not a natural-born citizen of the Philippines. The
actions contemplated in the said provision of the Constitution are post-election remedies, namely,
regular election contests and quo warranto. The petitioner should have, instead, resorted to pre-
election remedies, such as those prescribed in Section 68 (Disqualifications), in relation to Section
72; Section 69 (Nuisance candidates); and Section 78 (Petition to deny course to or cancel a
certificate of candidacy), in relation to Section 74, of the Omnibus Election Code, which are
implemented in Rules 23, 24 and 25 of the COMELEC Rules of Procedure. These pre-election
remedies or actions do not, however, fall within the original jurisdiction of this Court.
Under the Omnibus Election Code and the COMELEC Rules of Procedure, the COMELEC has the
original jurisdiction to determine in an appropriate proceeding whether a candidate for an elective
office is eligible for the office for which he filed his certificate of candidacy or is disqualified to be a
candidate or to continue such candidacy because of any of the recognized grounds for
disqualification. Its jurisdiction over COMELEC SPA No. 04-003 is, therefore, beyond question.

Upon the other hand, this Court has jurisdiction over Fornier’s petition (G.R. No. 161824) under
Section 7 of Article IX-A of the Constitution, which provides:

Section 7. Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A case
or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.

This Court can also take cognizance of the issue of whether the COMELEC committed grave abuse
of discretion amounting to lack or excess of jurisdiction in issuing the challenged resolution in
COMELEC SPA No. 04-003 by virtue of Section 1 of Article VIII of the Constitution, which reads as
follows:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of nay branch or
instrumentality of the Government.

On the issue of whether private respondent FPJ is a natural-born Filipino citizen, the following facts
have been established by a weighty preponderance of evidence either in the pleadings and the
documents attached thereto or from the admissions of the parties, through their counsels, during the
oral arguments:

1. FPJ was born on 20 August 1939 in Manila, Philippines.

2. FPJ was born to Allan Poe and Bessie Kelley.

3. Bessie Kelley and Allan Poe were married on 16 September 1940.

4. Allan Poe was a Filipino because his father, Lorenzo Poe, albeit a Spanish subject, was
not shown to have declared his allegiance to Spain by virtue of the Treaty of Paris and the
Philippine Bill of 1902.

From the foregoing it is clear that respondent FPJ was born before the marriage of his parents.
Thus, pursuant to the Civil Code then in force, he could either be (a) a natural child if both his
parents had no legal impediments to marry each other; or (b) an illegitimate child if, indeed, Allan
Poe was married to another woman who was still alive at the time FPJ was born.
Petitioner Fornier never alleged that Allan Poe was not the father of FPJ. By revolving his case
around the illegitimacy of FPJ, Fornier effectively conceded paternity or filiation as a non-issue. For
purposes of the citizenship of an illegitimate child whose father is a Filipino and whose mother is an
alien, proof of paternity or filiation is enough for the child to follow the citizenship of his putative
father, as advanced by Fr. Joaquin Bernas, one of the amici curiae. Since paternity or filiation is in
fact admitted by petitioner Fornier, the COMELEC committed no grave abuse of discretion in holding
that FPJ is a Filipino citizen, pursuant to paragraph 3 of Section 1 of Article IV of the 1935
Constitution, which reads:

Section 1. The following are citizens of the Philippines:

(3) Those whose fathers are citizens of the Philippines.

I agree with the amici curiae that this provision makes no distinction between legitimate and
illegitimate children of Filipino fathers. It is enough that filiation is established or that the child is
acknowledged or recognized by the father.

DISSENTING OPINION

CARPIO, J.:

I dissent from the majority opinion.

The Antecedent Proceedings

Petitioner Fornier filed before the Commission on Elections ("Comelec") a "Petition for
Disqualification of Presidential Candidate Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." on the
ground that Fernando Poe, Jr. ("FPJ") is not a natural-born Philippine citizen. The Comelec First
Division dismissed the petition, ruling that petitioner failed to present substantial evidence that FPJ
committed "any material misrepresentation when he stated in his Certificate of Candidacy that he is
a natural-born citizen." On motion for reconsideration, the Comelec En Banc affirmed the ruling of
the First Division. Petitioner Fornier now assails the Comelec En Banc resolution under Rule 64 in
relation to Rule 65 of the Rules of Court.

The Undisputed Facts

The undisputed facts are based on two documents and the admission of FPJ. The first document is
the Birth Certificate of FPJ, showing he was born on 20 August 1939. The Birth Certificate is an
evidence of FPJ.[1] The second document is the Marriage Certificate of Allan F. Poe and Bessie
Kelley, showing that their marriage took place on 16 September 1940. The Marriage Certificate is
also an evidence of FPJ.[2] Moreover, FPJ admits that his mother Bessie Kelley was an American
citizen.[3]

Based on these two documents and admission, the undisputed facts are: (1) FPJ was born out of
wedlock and therefore illegitimate,[4] and (2) the mother of FPJ was an American citizen.

The Issues

The issues raised in Fornier’s petition are:

 (a) Whether the Court has jurisdiction over the petition to disqualify FPJ as a candidate for
President on the ground that FPJ is not a natural-born Philippine citizen;

(b) Whether FPJ is a natural-born citizen of the Philippines.

Jurisdiction

The Comelec has jurisdiction to determine initially the qualifications of all candidates. Under Section
2(1), Article IX-C of the Constitution, the Comelec has the power and function to "[E]nforce and
administer all laws and regulations relative to the conduct of an election." The initial determination of
who are qualified to file certificates of candidacies with the Comelec clearly falls within this all-
encompassing constitutional mandate of the Comelec. The conduct of an election necessarily
includes the initial determination of who are qualified under existing laws to run for public office in an
election. Otherwise, the Comelec’s certified list of candidates will be cluttered with unqualified
candidates making the conduct of elections unmanageable. For this reason, the Comelec weeds out
every presidential election dozens of candidates for president who are deemed nuisance candidates
by the Comelec.[5]

Section 2(3), Article IX-C of the Constitution also empowers the Comelec to "[D]ecide, except those
involving the right to vote, all questions affecting elections x x x." The power to decide "all questions
affecting elections" necessarily includes the power to decide whether a candidate possesses the
qualifications required by law for election to public office. This broad constitutional power and
function vested in the Comelec is designed precisely to avoid any situation where a dispute affecting
elections is left without any legal remedy. If one who is obviously not a natural-born Philippine
citizen, like Arnold Schwarzenneger, runs for President, the Comelec is certainly not powerless to
cancel the certificate of candidacy of such candidate. There is no need to wait until after the
elections before such candidate may be disqualified.

Under Rule 25 on "Disqualification of Candidates" of the Comelec Rules of Procedure, a voter may
question before the Comelec the qualifications of any candidate for public office. Thus, Rule 25
provides:

Section 1. Grounds for Disqualification. — Any candidate who does not possess all the qualifications
of a candidate as provided for by the Constitution or by existing law or who commits any act
declared by law to be grounds for disqualification may be disqualified from continuing as a
candidate.

Section 2. Who May File Petition for Disqualification. — Any citizen of voting age, or duly registered
political party, organization or coalition of political parties may file with the Law Department of the
Commission a petition to disqualify a candidate on grounds provided by law. (Emphasis supplied)

The Comelec adopted its Rules of Procedure pursuant to its constitutional power to promulgate its
own rules of procedure[6] to expedite the disposition of cases or controversies falling within its
jurisdiction.

The Comelec has ruled upon the qualifications of candidates, even if the Constitution provides that
some other body shall be the "sole judge" of the qualifications of the holders of the public offices
involved. The Court has upheld the jurisdiction of Comelec to issue such rulings,[7] even when the
issue is the citizenship of a candidate.[8] Thus, the Comelec has jurisdiction to determine initially if
FPJ meets the citizenship qualification to run for President.
However, the Comelec En Banc, in its scanty resolution, failed to state the factual bases of its ruling.
The Comelec En Banc also failed to rule conclusively on the issue presented – whether FPJ is a
natural-born Philippine citizen. The Comelec En Banc affirmed the First Division ruling that "[W]e feel
we are not at liberty to finally declare whether or not the respondent is a natural-born citizen." In
short, the Comelec En Banc allowed a candidate for President to run in the coming elections without
being convinced that the candidate is a natural-born Philippine citizen. Clearly, the Comelec En
Banc acted with grave abuse of discretion. Under Section 1, Article VIII, as well as Section 5, Article
VIII, of the Constitution, the Court has jurisdiction to hear and decide the issue in a petition for
certiorari under Rule 64 in relation to Rule 65.

To hold that the Court acquires jurisdiction to determine the qualification of a candidate for President
only after the elections would lead to an absurd situation. The Court would have to wait for an alien
to be elected on election day before he could be disqualified to run for President. If the case is not
decided immediately after the election, an alien who wins the election may even assume office as
President before he is finally disqualified. Certainly, this is not what the Constitution says when it
provides that "[N]o person may be elected President unless he is a natural-born citizen of the
Philippines."[9] The clear and specific language of the Constitution prohibits the election of one who
is not a natural-born citizen. Thus, the issue of whether a candidate for President is a natural-born
Philippine citizen must be decided before the election.

Governing Laws

Since FPJ was born on 20 August 1939, his citizenship at the time of his birth depends on the
Constitution and statutes in force at the time of his birth.[10] FPJ’s citizenship at the time of his birth
in 1939, applying the laws in force in 1939, determines whether he is a natural-born Philippine
citizen.

Natural-born Philippine citizens are "those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship."[11] If a person has to
perform an act, such as proving in an administrative or judicial proceeding, that an event subsequent
to his birth transpired thus entitling him to Philippine citizenship, such person is not a natural born
citizen.[12]

The 1935 Constitution and the Spanish Civil Code, the laws in force in 1939, are the governing laws
that determine whether a person born in 1939 is a Philippine citizen at the time of his birth in 1939.
Any subsequent legislation cannot change the citizenship at birth of a person born in 1939 because
such legislation would violate the constitutional definition of a natural-born citizen as one who is a
Philippine citizen from birth. In short, one who is not a Philippine citizen at birth in 1939 cannot be
declared by subsequent legislation a natural-born citizen.

General Principles

A legitimate child of a Filipino father follows the citizenship of the father. A child born within wedlock
is presumed to be the son of the father[13] and thus carries the blood of the father. Under the
doctrine of jus sanguinis, as provided for in Section 1(3), Article III of the 1935 Constitution, a
legitimate child, by the fact of legitimacy, automatically follows the citizenship of the Filipino father.

An illegitimate child, however, enjoys no presumption at birth of blood relation to any father unless
the father acknowledges the child at birth.[14] The law has always required that "in all cases of
illegitimate children, their filiation must be duly proved."[15] The only legally known parent of an
illegitimate child, by the fact of illegitimacy, is the mother of the child who conclusively carries the
blood of the mother. Thus, unless the father acknowledges the illegitimate child at birth, the
illegitimate child can only acquire the citizenship of the only legally known parent - the mother.

However, if the Filipino father is legally known because the filiation (blood relation of illegitimate child
to the father) of the child to the Filipino father is established in accordance with law, the child follows
the citizenship of the Filipino father. This gives effect, without discrimination between legitimate and
illegitimate children, to the provision of the 1935 Constitution that "[T]hose whose fathers are citizens
of the Philippines"[16] are Philippine citizens.

Nature of Citizenship

If the Filipino father acknowledges the illegitimate child at birth, the child is a natural-born Philippine
citizen because no other act after his birth is required to acquire or perfect his Philippine citizenship.
The child possesses all the qualifications to be a Philippine citizen at birth.

If the Filipino father acknowledges the child after birth, the child is a Philippine citizen as of the time
of the acknowledgment. In this case, the child does not possess all the qualifications to be a
Philippine citizen at birth because an act - the acknowledgement of the Filipino father - is required for
the child to acquire or perfect his Philippine citizenship. Statutory provisions on retroactivity of
acknowledgment cannot be given effect because they would be contrary to the constitutional
definition of natural- born citizens as those who are Philippine citizens at birth without having to
perform any act to acquire or perfect their Philippine citizenship.

If the illegitimacy of a child is established, there is no presumption that the child has the blood of any
man who is supposed to be the father. There is only a conclusive presumption that the child has the
blood of the mother. If an illegitimate child claims to have the blood of a man who is supposed to be
the child’s father, such blood relation must be established in accordance with proof of filiation as
required by law.

Where the illegitimate child of an alien mother claims to follow the citizenship of the putative father,
the burden is on the illegitimate child to establish a blood relation to the putative Filipino father since
there is no presumption that an illegitimate child has the blood of the putative father. Even if the
putative father admits paternity after the birth of the illegitimate child, there must be an administrative
or judicial approval that such blood relation exists upon proof of paternity as required by law.

Citizenship, being a matter of public and State interest, cannot be conferred on an illegitimate child
of an alien mother on the mere say so of the putative Filipino father. The State has a right to
examine the veracity of the claim of paternity. Otherwise, the grant of Philippine citizenship to an
illegitimate child of an alien mother is left to the sole discretion of the putative Filipino father. For
example, a Philippine citizen of Chinese descent can simply claim that he has several illegitimate
children in China. The State cannot be required to grant Philippine passports to these supposed
illegitimate children born in China of Chinese mothers just because the putative Filipino father
acknowledges paternity of these illegitimate children. There must be either an administrative or
judicial determination that the claim of the putative Filipino father is true.

The case of the illegitimate Vietnamese children, born in Vietnam of Vietnamese mothers and
allegedly of Filipino fathers, is illustrative. These children grew up in Vietnam, many of them studying
there until high school. These children grew up knowing they were Vietnamese citizens. In 1975, a
Philippine Navy vessel brought them, together with their Vietnamese mothers, to the Philippines as
Saigon fell to the communists. The mothers of these children became stateless when the Republic of
(South) Vietnam ceased to exist in 1975. The Department of Justice rendered Opinion No. 49 dated
3 May 1995 that being children of Filipino fathers, these Vietnamese children, even if illegitimate, are
Philippine citizens under Section 1(3), Article IV of the 1935 Constitution and Section 1(2), Article III
of the 1973 Constitution. This Opinion is cited by FPJ as basis for his claim of being a natural-born
Philippine citizen.[17] However, this Opinion categorically stated that before the illegitimate
Vietnamese children may be considered Filipino citizens "it is necessary in every case referred to
that such paternity be established by sufficient and convincing documentary evidence."[18]

In short, the illegitimate child must prove to the proper administrative or judicial authority the
paternity of the alleged Filipino father by "sufficient and convincing documentary evidence." Clearly,
an administrative or judicial act is necessary to confer on the illegitimate Vietnamese children
Philippine citizenship. The mere claim of the illegitimate child of filiation to a Filipino father, or the
mere acknowledgment of the alleged Filipino father, does not automatically confer Philippine
citizenship on the child. The State must be convinced of the veracity of such claim and approve the
same. Since the illegitimate Vietnamese children need to perform an act to acquire or perfect
Philippine citizenship, they are not natural-born Philippine citizens. They become Philippine citizens
only from the moment the proper administrative or judicial authority approve and recognize their
filiation to their alleged Filipino fathers.

The rationale behind requiring that only natural-born citizens may hold certain high public offices[19]
is to insure that the holders of these high public offices grew up knowing they were at birth citizens of
the Philippines. In their formative years they knew they owed from birth their allegiance to the
Philippines. In case any other country claims their allegiance, they would be faithful and loyal to the
Philippines of which they were citizens from birth. This is particularly true to the President who is the
commander-in-chief of the armed forces.[20] The President of the Philippines must owe, from birth,
allegiance to the Philippines and must have grown up knowing that he was a citizen of the
Philippines at birth. The constitutional definition of a natural-born Philippine citizen would lose its
meaning and efficacy if one who was at birth recognized by law as an alien were declared forty
years later[21] a natural-born Philippine citizen just because his alleged Filipino father subsequently
admitted his paternity.

Proof of Filiation

Article 131[22] of the Spanish Civil Code, the law in force in 1939, recognized only the following as
proof of filiation of a natural child:

a. acknowledgment in a record of birth;

b. acknowledgment in a will;

c. acknowledgment in some other public document.

To establish his Philippine citizenship at birth, FPJ must present either an acknowledgement in a
record of birth, or an acknowledgment in some other public document executed at the time of his
birth. An acknowledgment executed after birth does not make one a citizen at birth but a citizen from
the time of such acknowledgment since the acknowledgment is an act done after birth to acquire or
perfect Philippine citizenship.

After the birth of one who is not a natural-born Philippine citizen, a subsequent legislation liberalizing
proof of filiation cannot apply to such person to make him a natural-born citizen. A natural-born
Philippine citizen is expressly defined in the Constitution as one who is a citizen at birth. If a person
is not a citizen at birth, no subsequent legislation can retroactively declare him a citizen at birth since
it would violate the constitutional definition of a natural-born citizen.
 Burden of Proof

Any person who claims to be a citizen of the Philippines has the burden of proving his Philippine
citizenship. Any person who claims to be qualified to run for President because he is, among others,
a natural-born Philippine citizen, has the burden of proving he is a natural-born citizen. Any doubt
whether or not he is natural-born citizen is resolved against him. The constitutional requirement of a
natural-born citizen, being an express qualification for election as President, must be complied with
strictly as defined in the Constitution. As the Court ruled in Paa v. Chan: [23]

It is incumbent upon a person who claims Philippine citizenship to prove to the satisfaction of the
Court that he is really a Filipino. No presumption can be indulged in favor of the claimant of
Philippine citizenship, and any doubt regarding citizenship must be resolved in favor of the State.

Since the undisputed facts show that FPJ is an illegitimate child, having been born out of wedlock,
the burden is on FPJ to prove his blood relation to his alleged Filipino father. An illegitimate child
enjoys no presumption of blood relation to any father. Such blood relationship must be established in
the appropriate proceedings in accordance with law.

Private party litigants cannot stipulate on the Philippine citizenship of a person because citizenship is
not a private right or property, but a matter of public and State interest. Even if petitioner Fornier
admits that FPJ, although illegitimate, is the son of Allan F. Poe, such admission cannot bind the
State for the purpose of conferring on FPJ the status of a natural-born Philippine citizen or even of a
naturalized citizen. Certainly, the Court will not recognize a person as a natural-born Philippine
citizen just because the private party litigants have admitted or stipulated on such a status. In the
present case, the Solicitor General, as representative of the Government, is strongly disputing the
status of FPJ as a natural-born Philippine citizen.

Legitimation

Under Article 123[24] of the Spanish Civil Code, legitimation took effect as of the date of marriage.
There was no retroactivity of the effects of legitimation on the rights of the legitimated child. Thus, a
legitimated child acquired the rights of a legitimate child only as of the date of marriage of the natural
parents. Allan F. Poe and Bessie Kelley were married on 16 September 1940 while FPJ was born
more than one year earlier on 20 August 1939. Assuming that Allan F. Poe was FPJ’s natural father,
the effects of legitimation did not retroact to the birth of FPJ on 20 August 1939.

Besides, legitimation vests only civil, not political rights, to the legitimated child. As the Court held in
Ching Leng:[25]

The framers of the Civil Code had no intention whatsoever to regulate therein political questions.
Hence, apart from reproducing the provisions of the Constitution on citizenship, the Code contains
no precept thereon except that which refers all matters of "naturalization", as well as those related to
the "loss and reacquisition of citizenship" to "special laws." Consistently with this policy, our Civil
Code does not include therein any rule analogous to Articles 18 to 28 of the Civil Code of Spain,
regulating citizenship. (Underscoring in the original)

Clearly, even assuming that the marriage of Allan F. Poe and Bessie Kelley legitimated FPJ, such
legitimation did not vest retroactively any civil or political rights to FPJ.

Treaty of Paris of 1898 and Philippine Bill of 1902

FPJ admits that his grandfather, Lorenzo Pou, was a Spanish citizen who came to the Philippines
from Spain.[26] To benefit from the mass naturalization under the Treaty of Paris of 1898 and the
Philippine Bill of 1902, FPJ must prove that Lorenzo Pou was an inhabitant and resident of the
Philippines on 11 April 1899. Once it is established that Lorenzo Pou was an inhabitant and resident
of the Philippines on 11 April 1899, then he is presumed to have acquired Philippine citizenship
under the Treaty of Paris of 1898 and the Philippine Bill of 1902.[27] Being an inhabitant and
resident of the Philippines on 11 April 1899 is the determinative fact to fall under the coverage of the
Treaty of Paris of 1898 and the Philippine Bill of 1902.[28]

There is, however, no evidence on record that Lorenzo Pou was a Philippine inhabitant and resident
on 11 April 1899. The date of arrival of Lorenzo Pou in the Philippines is not known. If he arrived in
the Philippines after 11 April 1899, then he could not benefit from the mass naturalization under the
Treaty of Paris of 1898 and the Philippine Bill of 1902. There is also no evidence that Lorenzo Pou
was naturalized as a Philippine citizen after 11 April 1899. Thus, there can be no presumption that
Lorenzo Pou was a Philippine citizen.

There is also no evidence on record that Allan F. Poe, the son of Lorenzo Pou and the alleged father
of FPJ, was naturalized as a Philippine citizen. Thus, based on the evidence adduced there is no
legal basis for claiming that Allan F. Poe is a Philippine citizen. Nevertheless, there is no need to
delve further into this issue since the Court can decide this case without determining the citizenship
of Lorenzo Pou and Allan F. Poe. Whether or not Lorenzo Pou and Allan F. Poe were Philippine
citizens is not material in resolving whether FPJ is a natural-born Philippine citizen.

Convention on the Rights of the Child

The Philippines signed the Convention on the Rights of the Child on 26 January 1990 and ratified
the same on 21 August 1990. The Convention defines a child to mean "every human being below
the age of eighteen years unless, under the law applicable to the child, majority is attained earlier."
Obviously, FPJ cannot invoke the Convention since he is not a child as defined in the Convention,
and he was born half a century before the Convention came into existence. FPJ’s citizenship at birth
in 1939 could not in any way be affected by the Convention which entered into force only on 2
September 1990.

The Convention has the status of a municipal law[29] and its ratification by the Philippines could not
have amended the express requirement in the Constitution that only natural-born citizens of
Philippines are qualified to be President. While the Constitution apparently favors natural-born
citizens over those who are not, that is the explicit requirement of the Constitution which neither the
Executive Department nor the Legislature, in ratifying a treaty, could amend. In short, the
Convention cannot amend the definition in the Constitution that natural-born citizens are "those who
are citizens of the Philippines from birth without having to perform any act to acquire or perfect their
Philippine citizenship."

In any event, the Convention guarantees a child "the right to acquire a nationality,"[30] and requires
States Parties to "ensure the implementation" of this right, "in particular where the child would
otherwise be stateless."[31] Thus, as far as nationality or citizenship is concerned, the Convention
guarantees the right of the child to acquire a nationality so that he may not be stateless. The
Convention does not guarantee a child a citizenship at birth, but merely "the right to acquire a
nationality" in accordance with municipal law. When FPJ was born in 1939, he was apparently under
United States law an American citizen at birth.[32] After his birth FPJ also had the right to acquire
Philippine citizenship by proving his filiation to his alleged Filipino father in accordance with
Philippine law. At no point in time was FPJ in danger of being stateless. Clearly, FPJ cannot invoke
the Convention to claim he is a natural-born Philippine citizen.
The Doctrine in Ching Leng v. Galang

The prevailing doctrine today is that an illegitimate child of a Filipino father and an alien mother
follows the citizenship of the alien mother as the only legally known parent. The illegitimate child,
even if acknowledged and legally adopted by the Filipino father, cannot acquire the citizenship of the
father. The Court made this definitive doctrinal ruling in Ching Leng v. Galang,[33] which involved
the illegitimate minor children of a naturalized Filipino of Chinese descent with a Chinese woman, Sy
An. The illegitimate children were later on jointly adopted by the naturalized Filipino and his legal
wife, So Buan Ty.

The facts in Ching Leng as quoted by the Court from the trial court’s decision are as follows:

After the petitioner Ching Leng Alias Ching Ban Lee obtained judgment in this Court dated May 2,
1950 granting his petition for naturalization, he together with his wife So Buan Ty filed another
petition also in this Court in Special Proc. No. 1216 for the adoption of Ching Tiong Seng, Ching
Liong Ding, Victoria Ching Liong Yam, Sydney Ching and Ching Tiong An, all minors and admittedly
the illegitimate children of petitioner Ching Leng with one Sy An, a Chinese citizen. Finding the
petition for adoption proper, this Court granted the same in a decision dated September 12, 1950,
declaring the said minors free from all legal obligations of obedience and maintenance with respect
to their mother Sy An and to all legal intents and purposes the children of the adopter Ching Leng
alias Ching Ban Lee and So Buan Ty with all the legal rights and obligations provided by law.

On September 29, 1955, Ching Leng took his oath of allegiance and became therefore a full pledge
(sic) Filipino citizen. Believing now that his adopted illegitimate children became Filipino citizens by
virtue of his naturalization, petitioner Ching Leng addressed a communication to the respondent
Commissioner of Immigration requesting that the alien certificate of registration of the said minors be
cancelled. (Bold underscoring supplied)

In Ching Leng, the Court made a definitive ruling on the meaning of "minor child or children" in
Section 15 of the Naturalization Law,[34] as well as the meaning of children "whose parents are
citizens of the Philippines" under the Constitution. The Court categorically ruled that these children
refer to legitimate children only, and not to illegitimate children. Thus, the Court held:

It is claimed that the phrases "minor children" and "minor child", used in these provisions, include
adopted children. The argument is predicated upon the theory that an adopted child is, for all intents
and purposes, a legitimate child. Whenever, the word "children" or "child" is used in statutes, it is
generally understood, however, to refer to legitimate children, unless the context of the law and its
spirit indicate clearly the contrary. Thus, for instance, when the Constitution provides that "those
whose parents are citizens of the Philippines, "and "those whose mothers are citizens of the
Philippines," who shall elect Philippine citizenship "upon reaching the age of majority", are citizens of
the Philippines (Article IV, Section 1, subdivisions 3 and 4), our fundamental law clearly refers to
legitimate children (Chiong Bian vs. De Leon, 46 Off. Gaz., 3652-3654; Serra v. Republic, L-4223,
May 12, 1952).

Similarly, the children alluded to in said section 15 are those begotten in lawful wedlock, when the
adopter, at least is the father. In fact, illegitimate children are under the parental authority of the
mother and follow her nationality, not that of the illegitimate father (U.S. vs. Ong Tianse, 29 Phil.
332, 335-336; Santos Co vs. Gov’t of the Philippines, 52 Phil. 543, 544; Serra v. Republic, supra;
Gallofin v. Ordoñez, 70 Phil. 287; Quimsuan vs. Republic, L-4693, Feb. 16, 1953). Although,
adoption gives "to the adopted person the same rights and duties as if he were a legitimate child of
the adopter", pursuant to said Article 341 of our Civil Code, we have already seen that the rights
therein alluded to are merely those enumerated in Article 264, and do not include the acquisition of
the nationality of the adopter.

Moreover, as used in said section 15 of the Naturalization Law, the term "children" could not possibly
refer to those whose relation to the naturalized person is one created by legal fiction, as, for
instance, by adoption, for, otherwise, the place and time of birth of the child would be immaterial.
The fact that the adopted persons involved in the case at bar are illegitimate children of appellant
Ching Leng does not affect substantially the legal situation before us, for, by legal fiction, they are
now being sought to be given the status of legitimate children of said appellant, despite the
circumstance that the Civil Code of the Philippine does not permit their legitimation. (Bold
underscoring supplied)

Ching Leng, penned by Justice Roberto Concepcion in October 1958, was a unanimous decision of
the Court En Banc. Subsequent Court decisions, including Paa v. Chan[35] and Morano et al. v.
Vivo,[36] have cited the doctrine laid down in Ching Leng that the provision in the 1935 Constitution
stating "those whose fathers are citizens of the Philippines" refers only to legitimate children. When
the 1973 and 1987 Constitutions were drafted, the framers did not attempt to change the intent of
this provision, even as they were presumably aware of the Ching Leng doctrine.

Nevertheless, I believe that it is now time to abandon the Ching Leng doctrine. The inexorable
direction of the law, both international and domestic in the last 100 years, is to eliminate all forms of
discrimination between legitimate and illegitimate children. Where the Constitution does not
distinguish between legitimate and illegitimate children, we should not also distinguish, especially
when private rights are not involved as in questions of citizenship. Abandoning the Ching Leng
doctrine upholds the equal protection clause of the Constitution. Abandoning the Ching Leng
doctrine is also in compliance with our treaty obligation under the Covenant on the Rights of Children
mandating States Parties to eliminate all forms of discrimination based on the status of children,
save of course those distinctions prescribed in the Constitution itself like the reservation of certain
high public offices to natural-born citizens.

Abandoning the Ching Leng doctrine does not mean, however, that an illegitimate child of a Filipino
father and an alien mother automatically becomes a Philippine citizen at birth. We have repeatedly
ruled that an illegitimate child does not enjoy any presumption of blood relation to the alleged father
until filiation or blood relation is proved as provided by law.[37] Article 887 of the Civil Code
expressly provides that "[I]n all cases of illegitimate children, their filiation must be duly proved." The
illegitimate child becomes a Philippine citizen only from the time he establishes his blood relation to
the Filipino father. If the blood relation is established after the birth of the illegitimate child, then the
child is not a natural-born Philippine citizen since an act is required after birth to acquire or perfect
his Philippine citizenship.

Conclusion

In conclusion, private respondent Fernando Poe, Jr. is not a natural-born Philippine citizen since
there is no showing that his alleged Filipino father Allan F. Poe acknowledged him at birth. The
Constitution defines a natural-born citizen as a Philippine citizen "from birth without having to
perform any act to acquire or perfect" his Philippine citizenship. Private respondent Fernando Poe,
Jr. does not meet this citizenship qualification.

Therefore, I vote to grant the petition of Victorino X. Fornier. However, I vote to dismiss the petitions
of Maria Jeanette C. Tecson, Felix B. Desiderio, Jr. and Zoilo Antonio Velez on the ground that their
direct petitions invoking the jurisdiction of the Court under Section 4, paragraph 7, Article VII of the
Constitution are premature, there being no election contest in this case.
Footnote

1 Tan Chong vs. The Secretary of Labor, 45 O.G. No. 31, 1269.

2Sec. 2. Mode of review. – A judgment or final order or resolution of the Commission on

Elections and the Commission on Audit may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65, except as hereinafter provided. (Rule 64)

3 Sec. 1. Petition for certiorari. – When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided in the
third paragraph of section 3, Rule 46. (Rule 65)

4 17 SCRA 761.

5 See Rule 66, Revised Rules of Civil Procedure.

6The Politics of Aristotle, edited and translated by Ernest Barker, Oxford University Press,
London, 1946. at p. 93.

7 Id., at 95.

8Introduction, "The Conditions of Citizenship," edited by Bart Van Steenbergen, Sage

Publications, London, Thousand Oaks, New Delhi (1994).

9 Ibid.

10 Ibid.

11 Ibid.

12 Ibid.

13Under the codified Novisima Recopilacion promulgated in Spain in 1805, the following
were considered denizens (vecinos) " all foreigners who obtained the privilege of
naturalization, those who were born in these kingdoms, those who residing therein may be
converted to the holy Catholic faith; those, being self-supporting, established their domicile
therein; and in the case of a foreign woman who married a native man, she thereby becomes
subject to the same laws and acquires the same domicile as her husband; those who
establish themselves in the country by acquiring real property; those who have trade or
profession and go there to practice the same; also those who practice some mechanical
trade therein or keep a retail store;....those who reside for a period of ten years in a home of
his own; and also those foreigners who, in accordance with the common law, royal orders
and other laws of the kingdoms, may have become naturalized or acquired residence
therein. (Leon T. Garcia, "The Problems of Citizenship in the Philippines," Rex Bookstore,
1949, at p. 4)

14 Garcia, supra., at p. 3.

15Justices Malcolm, Recto and Florentino Torres believed that the law was effective in the
Philippines. Those who entertained the contrary view were Justices Imperial and Villareal.
(Garcia, supra., at 4.).

16 Garcia, supra., pp. 5-6.

17Under the Royal Decree of August 23, 1868, the following were considered foreigners ---
(1) The legitimate and recognized natural children of a father who belongs to another
independent state, and the unrecognized and natural and other illegitimate children of a
mother belonging to another State born outside of the Spanish dominions, (2) The children
specified in the preceding paragraph, born in the Spanish dominions or on board Spanish
vessels on the high seas if they do not, on attaining the age of majority fixed in the laws of
the Kingdom, elect Spanish nationality, (3) Those being Spaniards, acquire another
nationality, as well by renouncing the first as by accepting employment, from another
government without the authority of the sovereign and (4) The woman who contracts
marriage with a subject of another State. (Garcia, supra., pp. 6-7)

18Under the law, the following were foreigners (a) All persons born of foreign parents outside
of the Spanish territory; (b) Those born outside of the Spanish territory of foreign fathers and
Spanish mothers while they do not claim Spanish nationality, (3) Those born in Spanish
territory of foreign parents or foreign fathers and Spanish mothers while they do not make
that claim, (4) Spaniards who may have lost their nationality, (5) Those born outside of the
Spanish territory of parents who may have lost their Spanish nationality; and (6), the Spanish
woman married to a foreigner. (Garcia, supra., p. 7)

19 Velayo, infra., p. 11.

20 Article 17, The Civil Code of Spain.

21 Garcia, supra, pp. 6-7.

Ramon M. Velayo, "Philippine Citizenship And Naturalization," Central Book Supply,

22

Manila (1965), pp. 22-23.

23 Ibid., p. 30.

24 Garcia, supra, at pp. 31-32.

25 Garcia, supra, pp. 23-26.

26 Velayo, supra, p. 31

27 Section 2, Article IV, 1987 Constitution.

28 Per amicus curiae Joaquin G. Bernas, SJ.

29 23 Phil 315 (1912).

30 Supra., which held that jus soli was never applied in the Philippines.

31 Antillon vs. Barcelon, 37 Phil 148.

32 Article 131 Old Civil Code.

33 Dayrit vs. Piccio, 92 Phil 729.

34 17 SCRA 788.

35 95 Phil 167.

36 125 SCRA 835.

37 Vicente J. Fransisco, Civil Code of the Philippines, Bk I, 1953 at p. 5

38 29 Phil 606.

Article 16. Real property as well as personal property is subject to the law of the country
39

where it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.

Article 17. The forms and solemnities of contracts, wills, and other public instruments
shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of
the Republic of the Philippines in a foreign country, the solemnities established by
Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs, shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.

Article 815. When a Filipino is in a foreign country, he is authorized to make a will in

any of the forms established by the law of the country in which he may be. Such will
may be probated in the Philippines.

Article 816. The will of an alien who is abroad produces effect in the Philippines if
made with the formalities prescribed by the law of the place in which he resides, or
 according to the formalities observed in his country, or in conformity with those which
this Code prescribes.

Article 817. A will made in the Philippines by a citizen or subject of another country,
which is executed in accordance with the law of the country of which he is a citizen or
subject, and which might be proved and allowed by the law of his own country, shall
have the same effect as if executed according to the laws of the Philippines.

Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a

foreign country shall not be valid in the Philippines, even though authorized by the
laws of the country where they may have been executed.

Article 1039. Capacity to succeed is governed by the law of the nation of the
decedent.

40Article 10. Marriages between Filipino citizens abroad may be solemnized by a consul
general, consul or vice-consul of the Republic of the Philippines. The issuance of the
marriage license and the duties of the local civil registrar and of the solemnizing officer with
regard to the celebration of marriage shall be performed by said consular official.

Article 21. When either or both of the contracting parties are citizens of a foreign
country, it shall be necessary for them before a marriage license can be obtained, to
submit a certificate of legal capacity to contract marriage, issued by their respective
diplomatic or consular officials.

Stateless persons or refugees from other countries shall, in lieu of the certificate of
legal capacity herein required, submit an affidavit stating the circumstances showing
such capacity to contract marriage.

Article 26. x x x

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and
a divorce is thereafter validly obtained abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine
law.

Article 80. In the absence of a contrary stipulation in the marriage settlements, the
property relations of the spouses shall be governed by Philippine laws, regardless of
the place of the celebration of the marriage and their residence. This rule shall not
apply:

(1) Where both spouses are aliens;

(2) With respect to the extrinsic validity of contracts affecting property not
situated in the Philippines and executed in the country where the property is
located; and

(3) With respect to the extrinsic validity of contracts entered into in the
Philippines but affecting property situated in a foreign country whose laws
require different formalities for their extrinsic validity.
 41 See Ching Leng vs. Galang, L-11931, October 1958, unreported.

42 354 SCRA 17.

43 20 SCRA 562, Paa vs. Chan 21 SCRA 753.

44 82 Phil. 771.

45 91 Phil. 914, unreported.

46 21 SCRA 753.

47 68 Phil 12.

48 248 SCRA 300 (1995)

CARPIO J.:

1 FPJ’s Memorandum before the Comelec dated 4 February 2004, pp. 2-3.

2 Ibid., pp. 4-5.

3 FPJ’s Answer before the Comelec dated 16 January 2004, pp. 5 and 21.

4 Article 108, Spanish Civil Code; Article 255, New Civil Code; Article 165, Family Code.

5Section 69 of Batas Pambansa Blg. 881 and Section 5 of Republic Act No. 6646. See
Bautista v. Commission on Elections, 359 Phil. 1 (1998); Fernandez v. Fernandez, et al., 146
Phil. 605 (1970).

6 Section 6, Article IX-A and Section 3, Article IX-C of the Constitution.

7Romualdez Marcos v. Comelec, G.R. No. 119976, 13 September 1995, 248 SCRA 300;
Aquino v. Comelec, 130 Phil. 275 (1968).

8 Frivaldo v. Comelec, G.R. No. 8793, 23 June 1989, 174 SCRA 245.

9 Section 2, Article VII of the Constitution.

10United States v. Lim Bin, 36 Phil. 924 (1917); Tan Chong v. Secretary of Labor, 79 Phil.
249 (1947).

11 Section 2, Article IV of the 1987 Constitution; Section 4, Article III of the 1973 Constitution.

The only exception is that specified in Section 1(3), Article IV of the 1987 Constitution,
12

which means that there can be no other exception to this rule.

13 See note 4.

14 Sebbano v. Aragon, 22 Phil. 10 (1912).

15 Article 887, New Civil Code.

16 Section 1(3), Article III of the 1935 Constitution.

17 Supra, note 3 at pp. 8-9.

18 Department of Justice Opinion No. 49 dated 3 May 1995.

19 Section 2, Article VIII of the 1987 Constitution.

20 Under the United States Constitution, the President, who is the commander-in-chief of the
armed forces, is required to be a natural-born citizen. The rationale for this is to insure that
no foreigner or former foreigner becomes the commander-in-chief of the armed forces. This
is culled from John Jay’s letter to George Washington when the qualifications for President of
the United States were being discussed in the constitutional convention. See Jill A. Pryor,
The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two
Hundred Years of Uncertainty, Yale Law Review, April 1988.

21Under Section 2, Article VII of the 1987 Constitution, the minimum age requirement to run
for President is forty years of age.

Article 131 of the Spanish Civil Code provides: "The acknowledgment of a natural child
22

must be made in the record of birth, in a will, or in some other public document."

23 128 Phil. 815 (1967).

24Article 123 of the Spanish Civil Code provides: "Legitimation shall produce its effects in
any case from the date of the marriage."

25 No. L-11931, 27 October 1958, 104 Phil. 1058 (unreported).

26 Supra, note 3 at p. 14.

27 Article IX, Treaty of Paris, 10 December 1898; Section 4, Philippine Bill of 1902.

28 Ibid.

Emerald Garments Manufacturing Corp. v. Court of Appeals, G.R. No. 100098, 29

29

December 1995, 251 SCRA 600.

30 Paragraph 1, Article 7, Convention on the Rights of the Child.

31 Paragraph 2, ibid.

32See Daniel Levy, U.S. Citizenship and Naturalization Handbook, December 2003, stating
in Chapter 4:

4:29. OUT-OF-WEDLOCK CHILDREN

 Out-of-wedlock children born to a U.S. citizen mother between May 24, 1934 and
January 13, 1941, acquired U.S. citizenship at birth through the general provision of
the 1934 act, which granted U.S. citizenship to children born abroad to a U.S. citizen
parent. Since the natural father in such cases is not considered the legal father, the
retention requirement when one parent is a non-citizen does not apply. The
citizenship acquired under this provision is not affected by subsequent legitimation of
the child.

33 Supra, note 25.

34 Section 15 of the Naturalization Law provided as follows:

Minor children of persons naturalized under this law who have been born in the
Philippines shall be considered citizens thereof.

A foreign-born minor child, if dwelling in the Philippines at the time of the

naturalization of the parent, shall automatically become a Philippine citizen,
and a foreign-born minor child, who is not in the Philippines at the time the
parent is naturalized, shall be deemed a Philippine citizen only during his
minority, unless he begins to reside permanently in the Philippines when still
a minor, in which case, he will continue to be a Philippine citizen even after
becoming of age.

A child born outside of the Philippines after the naturalization of his parent,
shall be considered a Philippine citizen, unless within one year after reaching
the age of majority, he fails to register himself as a Philippine citizen at the
American Consulate of the country where he resides, and to take the
necessary oath of allegiance.

35 Supra, note 23.

36 128 Phil. 923 (1967).

37Reyes, et al. v. CA, et. al., 220 Phil. 116 (1985); Colorado v. Court of Appeals, G.R. No. L-
39948, 28 February 1985, 135 SCRA 47; Berciles, et al. v. GSIS, et al., 213 Phil. 48 (1984);
Divinagracia v. Rovira, G.R. No. L-42615, 10 August 1976, 72 SCRA 307; Noble v. Noble,
125 Phil. 123 (1966); Rep. of the Phils. v. WCC and Espiritu, 121 Phil. 261 (1965); Paulino v.
Paulino, G.R. No. L-15091, 28 December 1961, 3 SCRA 730.
G.R. No. 47616 September 16, 1947

JOSE TAN CHONG, petitioner-appellee,

vs.
THE SECRETARY OF LABOR, respondent-appellant.

x---------------------------------------------------------x

G.R. No. 47623 September 16, 1947

LAM SWEE SANG, petitioner-appellee,

vs.
THE COMMONWEALTH OF THE PHILIPPINES, oppositor-appellant.

First Assistance Solicitor General Jose B. L. Reyes and Solicitor Lucas Lacson for appellants.
Antonio V. Raquiza for appellee.

PADILLA, J.:

On 15 October 1941, a decision was promulgated in thecase of Tan Chong vs. Secretary of Labor,
G.R. No. 47616,whereby this Court affirmed the judgment of the Court of First Instance of Manila,
which hAd granted the writ of habeas corpus applied for by tan Chong, on the ground that he, being
a native of the Philippines, of a Chinese father and a Filipino mother, is a citizen of the Philippines.

On the same date, in the case of Lam Swee Sang vs. Commonwealth of the Philippines (G.R. No.
47623), this Court rendered a decision dismissing the petition of the applicant for naturalization filed
in the Court of First Instance of Zamboanga, on the ground that the applicant, having been born in
Sulu, Philippines, of a Chinese father and Filipino mother, is a citizen of the Philippines. The
dismissal of the petition implies and means that there was no need of naturalization for the applicant
who is aFilipino citizen.

On 21 October 1941, a motion for reconsideration was filed in both cases by the Solicitor General.
The latter contends that even if the petitioner in the first case and the applicant in the second were
born in the Philippines, of a Chines father and a Filipino mother, lawfully married, still they are not
citizens of the Philippines under and pursuant to the laws in force at the time of their birth, and prays
that both decisions be set aside and the judgments appealed from be reversed. This motion for
reconsideration was pending in this Court when the Pacific was broke out. During the battle for
liberation, the records of both cases were destroyed. Upon petition of the Assistant Solicitor General,
Mr. Roberto A. Gianzon, therecords were reconstituted in accordance with the provisionsof Act. No.
3110. The record of the first case, G.R. No. 47616,was declared reconstituted on 5 June, and of the
second case, G.R. No. 47623, on 28 June 1946. Upon these reconstituted records, we now proceed
to dispose of the motion for reconsideration.

In a long line of decisions, this Court has held that the principle of jus soli applies in this jurisdiction.
It is embodied in the Fourteenth Amendment to the Constitution of the United States which provides
that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside." In the case of U.S. vs. Wong Kim
Ark, 169 U.S., 649, the SupremeCourt of the United States applying the principle of jus soli held that
a person born in the United States of Chinese parents domiciled therein is a citizen of the United
States. It further held that the Fourteenth Amendment was declaratory of the common law as existed
in England and in the United States before and after the Declaration of independence. From that
decision, Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan, dissented. The principle
of jus soliwas the rule in this jurisdiction until the 30th of September, 1939, when in the case of Chua
vs. Secretary of Labor(68 Phil., 649), this Court abandoned it and held that a person of Chinese
parentage born in the Philippines in 1941 is not a citizen thereof, because she followed the
citizenship of her Chinese parents and she is not a citizen of the Philippines under the provisions of
section 2 of the Jones Law, the Act of Congress of 29 August 1916. But in the cases of Torres and
Gallofin vs. Tan Chim (69 Phil., 518), decided on 3 February 1940 (69 Phil., 518), and Gallofin vs.
Ordoñez, decided on 27 June 1940 (70 Phil., 287), this Court reverted to the rule of jus soli laid
down in the cases prior to the decisionin the case of Chua vs. Secretary of Labor, supra.

The Solicitor General heeding the opinions of the Assitant Secretary of State, Mr. G.S. Messermith,
of 15 January 1938; of the Second Assistant Secretary of State, Mr. Alvey A. Adee, dated 12
September 1921, and of the Acting Secretary of State, Mr. Huntington Wilson, of 5April 1912, who
held that a person born in the Philippines of alien parentage is not a citizen thereof, because the
common law principle of jus soli or the Fourteenth Amendment to the Constitutiton of United States
was not extended to the Philippines — the same opinions upon which the Solicitor General had
relied in the case of Chua vs. The Secretary of Labor, supra, in his contention that the rule applying
the principle of jus soli in this jurisdiction should be abandoned — urges upon this Court to
reconsider its decisions in the cases under consideration.

In the case of Muñoz vs. Collector of Customs, 20 Phil.,494, the Court applied the principle of jus
soli to a person born in the Philippines of a Chinese father and a Filipino mother, and in so doing it
cited the case of U.S. vs. Gosiaco, 12 Phil., 490 where, according to the Court, the principle had
been applied. But nowhere in the decision of the last mentioned case was such principle applied,
because the only question passed upon was whether a person detained for not having a certificate
of registration, as required by Act 702, could be admitted to bail pending determination of his appeal
by this Court as to whether he did come within the provisions of said Act.

In the case of Roa vs. Collector of Customs, 23 Phil.,315, this Court passed upon the question as to
whether a person born in the Philippines of a Chinese father and a Filipino mother, legally married; is
a citizen thereof. In this case this Court took into consideration the provisions of articles 17, 18 and
19 of the Civil Code in viewof the fact that the petitioner was born on 6 July 1889; the second
paragraph of Article IX of the Treaty of Paris; section 4 of the Philippine Bill (Act of Congress of 1
July 1902) and the amendatory Act of Congress of 23 March 1912, these being the laws then
applicable. Commenting on sec. 4 of the Philippine Bill, as amended, this Court said:

By section 4 the doctrine or principle of citizenship by place of birth which prevails in the
United States was extended to the Philippine Islands, but with limitations. In the United
States every person, which certain specific exceptions, born in the United States is a citizen
of that country. Under section 4 every person born after the 11th of April, 1889, of parents
who were Spanish subjects on that date and who continued to reside in this country are at
themoment of their birth ipso facto citizens of the Philippine Islands. From the reading of
section 4 and taking into consideration the Act of March 23, 1912, it is clear that Congress
realized that there were inhabitants in the Philippine Islands who did not come within the
provisions of said section, and also that Congress did not then by express legislation
determine the political status of such persons. Therefore, the inquiry is — Did Congress
intend to say that all of the inhabitants who were not included in section 4 are to be
"deemedand held to be" aliens to the Philippine islands? (Pp. 333-334.) (Emphasis
supplied.)

In answering the question in the negative, this Court cited the case of an unmarried woman, a native
of Porto Rico, 20 years of age, who arrived in New York by steamer from Porto Rico on 24 August
1902. She was detained at the Immigrant station, examined by a board of special inquiry, and
excluded. The writ for habeas corpus having been denied by the Circuit Court, for the reason that
she might become a public charge, she appealed to the Supreme Court of the United States which
held that she was not an alien to the United States. But the decision of the Supreme Court of the
United States in the case cited does not answer negatively the question asked by this Court,
because it does not appear that she is of alien parentage and it appears that she was a resident of
Porto Rico on11 April 1899. (192 U.S. 1.) Further commenting on section 4, this Court said:

This section declares that a certain class of inhabitants shall be citizens of the Philippine
Islands. It does not declare that other inhabitants shall not be citizens. Neither does it declare
that other inhabitants shall be deemed to be aliens to the Philippine Islands, and especially it
does not declare that aperson situated as in the appellant shall not be nor shall not elect to
be a citizen of the country on his birth. The appellant could, as we have said, elect to
become a citizen of the United States had he been born in that country under the same
circumstances which now surround him. All the laws and the rulings of the courts on the
subject so declare, and this has been the declared policy of the United States. While it has
been decided that the Constitution and acts of Congress do not apply ex proprio vigore to
this country, but that they must be expressly entended by Congress, nevertheless, some of
the basic principles upon which the government of the United States rests and the greater
part of the Bill of Rights, which protects the citizens of that country, have been extended to
the Philippine Islands by the instructions of the President to the first Philippine Commission
and the Philippine Bill. (P. 339-340.)

The declaration that a certain class of inhabitants shall be citizens of the Philippines is tantamount or
equivalent to declaring that those who do not belong to that class shall not be. Realizing the
weakness of the position taken, in view of the express provisions of section 4 of the Philippine Bill,
as amended, and of the fact that the Constitution of the United States and Acts of Congress do not
apply ex proprio vigore to the Philippines, the Court hastened to add another ground in support of
the pronouncement that petitioner Roa is a Filipino citizen, and for that reason entitled to land and
reside in the Philippines. The additional ground is that the petitioner's father having died in China in
1900, his mother reacquired her Filipino citizenship which he being under age followed upon the
death of his father. The concluding pronouncement in the decisionof the case is, as follows:

The nationality of the appellant having followed that of his mother, he was therefore a citizen
of the Philippine Islands on July 1, 1902, and never having expatriated himself, he still
remains a citizen of this country.

If all the native inhabitants residing in the Philippines on the 11th day of April 1899, regardless of
their alien parentage, are citizens thereof, the amendatory Act of Congress of 23 March 1912
empowering the Philippine Legislature to provide by legislation for the acquisition of Filipino
citizenship by those natives excluded from such citizenship by the original section 4 of the Philippine
Bill, would be meaningless.

We are not unmindful of the importance of the question submitted to us for decision. We know that
the decision upon the motion for reconsideration in these cases is momentous. We have given the
time and the thought demanded by its importance. While birth is an important element of citizenship,
it alone does not make a person a citizen of the country of his birth. Youth spent in the country;
intimate and endearing association with the citizens among whom he lives; knowledge and pride of
the country's past; belief in the greatness and security of its institutions, in the loftiness of its ideals,
and in the ability of the country's government to protect him, his children, and his earthly
possessions against perils from within and from without; and his readiness to defend the country
against such perils, are some of the important elements that would make a person living in a country
its citizen. Citizenship is a political status. The citizen must be proud of his citizenship. He should
treasure and cherish it. In the language of Mr. Chief Justice Fuller, "the question of citizenship in a
nation is of the most vital importance. It is a precious heritage, as well as an inestimable acquisition."
(U.S. vs. Wong Kim Ark, supra.) Citizenship, the main integrate element of which is allegiance, must
not be taken lightly. Dual allegiance must be discouraged and prevented. But the application of the
principle of jus soli to persons born in this country of alien parentage would encourage dual
allegiance which in the long run would be detrimental to both countries of which such persons might
claim to be citizens.

The pinciple of stare decisis does not mean blind adherence to precedents. The doctrines or rule laid
down, which has been followed for years, no matter how sound it may be, if found to be contrary to
law, must be abandoned. The principleof stare decisis does not and should not apply when there is
conflict between the precedent and the law. The duty of this Court is to forsake and abandon any
doctrine or rule found to be in violation of the law in force.

It appears that the petitioner in the first case was born in San Pablo, Laguna, in July 1915, of a
Chinese father and a Filipino mother, lawfully married, left for China in 1925, and returned to the
Philippines on 25 January1940. The applicant in the second case was born in Jolo, Sulu, on 8 May
1900, of a Chinese father and a Filipino mother. It does not appear whether they were legally
married, so in the absence of proof to the contrary they are presumed to be lawfully married. From
the date of his birth up to 16 November 1938, the date of filing of his application for naturalization,
and up to the date of hearing, he had been residing in the Philippines. He is married to a Filipino
woman and has three children by her. He speaks the local dialect and the Spanish and English
languages.

Considering that the common law principle or rule of jus soli obtaining in England and in the United
States, as embodied in the Fourteenth Amendment to the Constitution of the United States, has
never been entended to this jurisdiction (section 1, Act of 1 July 1902; sec. 5, Actof 29 August 1916);
considering that the law in force and applicable to the petitioner and the applicant in the two cases at
the time of their birth is sec. 4 of the Philippine Bill (Act of 1 July 1902), as amended by Act of 23
March 1912, which provides that only those "inhabitants of the Philippine Islands continuing to reside
therein who were Spanish subjects on the 11th day of April, 1899, and then resided in said Islands,
and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine
Islands," we are of the opinion and so hold that the petitioner in the first case and the applicant in the
second case, who were born of alien parentage, were not and are not, under saidsection, citizens of
the Philippine Islands.

Needless to say, this decision is not intended or designed to deprive, as it cannot divest, of their
Filipino citizenship, those who had been declared to be Filipino citizens, or upon whom such
citizenship had been conferred, by the courts because of the doctrine or principle of res adjudicata.

Accordingly, the decision of this Court in the first case confirming the lower court's judgment is set
aside; the judgment of the Court of First Instance of Manila appealed from is reversed; the petitioner
is recommitted to the custody of the Commissioner of Immigration to be dealt with in accordance
with law; and the decision of this Court in the second case is set aside; the decree of theCourt of
First Instance of Zamboanga appealed from granting the applicant's peition for naturalization filed
on16 November 1938 is affirmed, for the applicant comes under section 1 (a), Act 2927, as
amended by Act 3448, and possesses the qualifications required by setion 3 of the same Act, as
amended, which was the law in force at the time of the filing of the petition for naturalization. No
costs shall be taxed in both cases.

Moran, C. J., Paras, Feria, Pablo, Perfecto, Bengzon, Briones, and Hontiveros, JJ., concur.
Separate Opinions

HILADO, J., concurring:

I concur in the entire majority opinion. I concur inthe revocation of the doctrine of jus soli enunciated,
among other cases, in Roa vs. Insular Collector of Customs, 23 Phil., 315. Besides, the ruling in that
case can not be invoked in favor of the petitioner in G.R. No. 47616 nor of the applicant in G.R. No.
47623 for the reason that, while Tranquilino Roa in that case was born in the Philippines in theyear
1889, when articles 17 et seq. of the Civil Code were yet in force here and made him a Spanish
subject, the said petitioner and applicant in the instant cases were born, although also in the
Philippines, 1915 and 1900, respectively, i. e., after the abrogation of said articles, due to their
political character, upon the changeof sovereignty following the treaty of Paris ending theSpanish-
American war (Roa vs. Insular Collector of Customs, 23 Phil., 315, 330; Halleck's International Law,
Chapter 34, par. 14; American and Ocean Insurance Companies vs. 356 Bales of Cotton, 1 Pet. [26
U.S.], 511 542, 7 Law.ed., 242). As declared in the majority opinion, the citizenship of said petitioner
and applicant should be determined as of the dates of their respective births.

At the time the petitioner in G.R. No. 47616 was born (1915) the law on Philippine citizenship was
contained in the Philippine Bill, section 4, as amended by the Act of Congress of March 23, 1912.
Under this provision said petitioner could not be a Filipino citizen upon the date of his birth because
his father, who was legally married to his mother, was a Chinese citizen and not a subject of Spain.
If his father had been a subject of Spain on April 11, 1899, like his mother, who was a native Filipina,
before their marriage — and in that case, after said marriage, she would have acquired the
citizenship of her husband even if she had been a foreigner — then under section 4 of thePhilippine
Bill, as amended, said parents of said petitioner would have become citizens of the Philippines
unless they should have elected to preserve their allegiance to Spain in the manner and within the
period therein prescribed; and then, too, the petitioner upon being born in 1915 would automatically
have acquired Philippine citizenship. But such was not the case.

The applicant in G.R. No. 47623 could not possibly be a Filipino citizen upon his birth (1900)
because, aside from the fact that his father, who is presumed to have been legally married to his
mother, was a Chinese subject, there was no law on Philippine citizenship at that time, because,
firstly, even the aforecited articles of the Civil Code had previously been abrogated, as already
stated by the change of sovereignty in the Philippines following the Spanish-American war,
secondly, said articles at any rate did not regulate Philippine citizenship nor did they make said
applicant's father a Spanish subject, and, thirdly, the Philippine Bill was not enacted until July 1,
1902.

In the case of the applicant in G.R. No. 47623, his father was a Chinese subject on April 11, 1899.
And his mother, upon her marriage with her Chinese husband, acquired his nationality. So that when
said applicant was born in 1900 his parents were Chinese subjects. When the Philippine Bill was
enacted on July 1, 1902, therefore, said applicant and his parents were not subjects of Spain and
consequently could not have acquired Philippine citizenship by virtue of section 4 thereof. It was only
after the Philippine Naturalization Law was enacted, pursuant to the Act of Congress of August 29,
1916 (Jones Law), that the said applicant had his first opportunity to become a naturalized citizen of
this country.

Consequently, I reach the same conclusion as the majority.

G.R. No. 180088 January 19, 2009

MANUEL B. JAPZON, Petitioner,

vs.
COMMISSION ON ELECTIONS and JAIME S. TY, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rules 641 and 652 of the Revised Rules of Court
seeking to annul and set aside the Resolution3 dated 31 July 2007 of the First Division of public
respondent Commission on Elections (COMELEC) and the Resolution4 dated 28 September 2007 of
COMELEC en banc, in SPA No. 07-568, for having been rendered with grave abuse of discretion,
amounting to lack or excess of jurisdiction.

Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were
candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, in the
local elections held on 14 May 2007.

On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a Petition5 to
disqualify and/or cancel Ty’s Certificate of Candidacy on the ground of material misrepresentation.
Japzon averred in his Petition that Ty was a former natural-born Filipino, having been born on 9
October 1943 in what was then Pambujan Sur, Hernani Eastern Samar (now the Municipality of
General Macarthur, Easter Samar) to spouses Ang Chim Ty (a Chinese) and Crisanta Aranas
Sumiguin (a Filipino). Ty eventually migrated to the United States of America (USA) and became a
citizen thereof. Ty had been residing in the USA for the last 25 years. When Ty filed his Certificate of
Candidacy on 28 March 2007, he falsely represented therein that he was a resident of Barangay 6,
Poblacion, General Macarthur, Eastern Samar, for one year before 14 May 2007, and was not a
permanent resident or immigrant of any foreign country. While Ty may have applied for the
reacquisition of his Philippine citizenship, he never actually resided in Barangay 6, Poblacion,
General Macarthur, Eastern Samar, for a period of one year immediately preceding the date of
election as required under Section 39 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991. In fact, even after filing his application for reacquisition of his Philippine
citizenship, Ty continued to make trips to the USA, the most recent of which was on 31 October
2006 lasting until 20 January 2007. Moreover, although Ty already took his Oath of Allegiance to the
Republic of the Philippines, he continued to comport himself as an American citizen as proven by his
travel records. He had also failed to renounce his foreign citizenship as required by Republic Act No.
9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003, or related laws.
Hence, Japzon prayed for in his Petition that the COMELEC order the disqualification of Ty from
running for public office and the cancellation of the latter’s Certificate of Candidacy.

In his Answer6 to Japzon’s Petition in SPA No. 07-568, Ty admitted that he was a natural-born
Filipino who went to the USA to work and subsequently became a naturalized American citizen. Ty
claimed, however, that prior to filing his Certificate of Candidacy for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he already performed the
following acts: (1) with the enactment of Republic Act No. 9225, granting dual citizenship to natural-
born Filipinos, Ty filed with the Philippine Consulate General in Los Angeles, California, USA, an
application for the reacquisition of his Philippine citizenship; (2) on 2 October 2005, Ty executed an
Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the
Philippine Consulate General in Los Angeles, California, USA; (3) Ty applied for a Philippine
passport indicating in his application that his residence in the Philippines was at A. Mabini St.,
Barangay 6, Poblacion, General Macarthur, Eastern Samar. Ty’s application was approved and he
was issued on 26 October 2005 a Philippine passport; (4) on 8 March 2006, Ty personally secured
and signed his Community Tax Certificate (CTC) from the Municipality of General Macarthur, in
which he stated that his address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar;
(5) thereafter, on 17 July 2006, Ty was registered as a voter in Precinct 0013A, Barangay 6,
Poblacion, General Macarthur, Eastern Samar; (6) Ty secured another CTC dated 4 January 2007
again stating therein his address as Barangay 6, Poblacion, General Macarthur, Eastern Samar; and
(7) finally, Ty executed on 19 March 2007 a duly notarized Renunciation of Foreign Citizenship.
Given the aforementioned facts, Ty argued that he had reacquired his Philippine citizenship and
renounced his American citizenship, and he had been a resident of the Municipality of General
Macarthur, Eastern Samar, for more than one year prior to the 14 May 2007 elections. Therefore, Ty
sought the dismissal of Japzon’s Petition in SPA No. 07-568.

Pending the submission by the parties of their respective Position Papers in SPA No. 07-568, the 14
May 2007 elections were already held. Ty acquired the highest number of votes and was declared
Mayor of the Municipality of General Macarthur, Eastern Samar, by the Municipal Board of
Canvassers on 15 May 2007.7

Following the submission of the Position Papers of both parties, the COMELEC First Division
rendered its Resolution8 dated 31 July 2007 in favor of Ty.

The COMELEC First Division found that Ty complied with the requirements of Sections 3 and 5 of
Republic Act No. 9225 and reacquired his Philippine citizenship, to wit:

Philippine citizenship is an indispensable requirement for holding an elective public office, and the
purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person
owing allegiance to another nation, shall govern our people and our country or a unit of territory
thereof. Evidences revealed that [Ty] executed an Oath of Allegiance before Noemi T. Diaz, Vice
Consul of the Philippine Consulate General, Los Angeles, California, U.S.A. on October 2, 2005 and
executed a Renunciation of Foreign Citizenship on March 19, 2007 in compliance with R.A. [No.]
9225. Moreover, neither is [Ty] a candidate for or occupying public office nor is in active service as
commissioned or non-commissioned officer in the armed forces in the country of which he was
naturalized citizen.9

The COMELEC First Division also held that Ty did not commit material misrepresentation in stating
in his Certificate of Candidacy that he was a resident of Barangay 6, Poblacion, General Macarthur,
Eastern Samar, for at least one year before the elections on 14 May 2007. It reasoned that:

Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S. citizen in
1969, the reacquisition of his Philippine citizenship and subsequent acts thereof proved that he has
been a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for at least one (1)
year before the elections held on 14 May 2007 as he represented in his certificate of candidacy[.]

As held in Coquilla vs. Comelec:

"The term ‘residence’ is to be understood not in its common acceptation as referring to ‘dwelling’ or
‘habitation,’ but rather to ‘domicile’ or legal residence, that is, ‘the place where a party actually or
constructively has his permanent home, where he, no matter where he may be found at any given
time, eventually intends to return and remain (animus manendi).’ A domicile of origin is acquired by
every person at birth. It is usually the place where the child’s parents reside and continues until the
same is abandoned by acquisition of new domicile (domicile of choice).
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after
enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired
Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as
our immigration laws may have allowed him to stay as a visitor or as a resident alien.

Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8,
§1427(a) of the United States Code provides:

Requirements of naturalization: Residence

(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such
applicant, (1) year immediately preceding the date of filing his application for naturalization has
resided continuously, after being lawfully admitted for permanent residence, within the United States
for at least five years and during the five years immediately preceding the date of filing his petition
has been physically present therein for periods totaling at least half of that time, and who has
resided within the State or within the district of the Service in the United States in which the applicant
filed the application for at least three months, (2) has resided continuously within the United States
from the date of the application up to the time of admission to citizenship, and (3) during all period
referred to in this subsection has been and still is a person of good moral character, attached to the
principles of the Constitution of the United States, and well disposed to the good order and
happiness of the United States. (Emphasis added)

In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue of a
‘greencard,’ which entitles one to reside permanently in that country, constitutes abandonment of
domicile in the Philippines. With more reason then does naturalization in a foreign country result in
an abandonment of domicile in the Philippines.

Records showed that after taking an Oath of Allegiance before the Vice Consul of the Philippine
Consulate General on October 2, 2005, [Ty] applied and was issued a Philippine passport on
October 26, 2005; and secured a community tax certificate from the Municipality of General
Macarthur on March 8, 2006. Evidently, [Ty] was already a resident of Barangay 6, Poblacion,
General Macarthur, Eastern Samar for more than one (1) year before the elections on May 14,
2007.10 (Emphasis ours.)

The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division, thus, reads:

WHEREFORE, premises considered, the petition is DENIED for lack of merit.11

Japzon filed a Motion for Reconsideration of the foregoing Resolution of the COMELEC First
Division. On 28 September 2007, the COMELEC en banc issued its Resolution12 denying Japzon’s
Motion for Reconsideration and affirming the assailed Resolution of the COMELEC First Division, on
the basis of the following ratiocination:

We have held that a Natural born Filipino who obtains foreign citizenship, and subsequently spurns
the same, is by clear acts of repatriation a Filipino Citizen and hence qualified to run as a candidate
for any local post.

xxxx

It must be noted that absent any showing of irregularity that overturns the prevailing status of a
citizen, the presumption of regularity remains. Citizenship is an important aspect of every individual’s
constitutionally granted rights and privileges. This is essential in determining whether one has the
right to exercise pre-determined political rights such as the right to vote or the right to be elected to
office and as such rights spring from citizenship.

Owing to its primordial importance, it is thus presumed that every person is a citizen of the country in
which he resides; that citizenship once granted is presumably retained unless voluntarily
relinquished; and that the burden rests upon who alleges a change in citizenship and allegiance to
establish the fact.

Our review of the Motion for Reconsideration shows that it does not raise any new or novel issues.
The arguments made therein have already been dissected and expounded upon extensively by the
first Division of the Commission, and there appears to be no reason to depart from the wisdom of the
earlier resolution. We thus affirm that [Ty] did not commit any material misrepresentation when he
accomplished his Certificate of Candidacy. The only ground for denial of a Certificate of Candidacy
would be when there was material misrepresentation meant to mislead the electorate as to the
qualifications of the candidate. There was none in this case, thus there is not enough reason to deny
due course to the Certificate of Candidacy of Respondent James S. Ty.13

Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file the instant
Petition for Certiorari, relying on the following grounds:

A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND
JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE AND
RESIDENCE.14

B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TY’S] CERTIFICATE OF CANDIDACY,
AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED MAYOR OF GEN.
MACARTHUR, EASTERN SAMAR.15

Japzon argues that when Ty became a naturalized American citizen, he lost his domicile of origin. Ty
did not establish his residence in the Municipality of General Macarthur, Eastern Samar, Philippines,
just because he reacquired his Philippine citizenship. The burden falls upon Ty to prove that he
established a new domicile of choice in General Macarthur, Eastern Samar, a burden which he failed
to discharge. Ty did not become a resident of General Macarthur, Eastern Samar, by merely
executing the Oath of Allegiance under Republic Act No. 9225.

Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for running as a
mayoralty candidate in the 14 May 2007 local elections. The one-year residency requirement for
those running for public office cannot be waived or liberally applied in favor of dual citizens.
Consequently, Japzon believes he was the only remaining candidate for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, and is the only placer in the 14 May 2007 local
elections.

Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and 28
September 2007 of the COMELEC First Division and en banc, respectively; to issue a new
resolution denying due course to or canceling Ty’s Certificate of Candidacy; and to declare Japzon
as the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar.
As expected, Ty sought the dismissal of the present Petition. According to Ty, the COMELEC
already found sufficient evidence to prove that Ty was a resident of the Municipality of General
Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. The Court cannot
evaluate again the very same pieces of evidence without violating the well-entrenched rule that
findings of fact of the COMELEC are binding on the Court. Ty disputes Japzon’s assertion that the
COMELEC committed grave abuse of discretion in rendering the assailed Resolutions, and avers
that the said Resolutions were based on the evidence presented by the parties and consistent with
prevailing jurisprudence on the matter. Even assuming that Ty, the winning candidate for the Office
of Mayor of the Municipality of General Macarthur, Eastern Samar, is indeed disqualified from
running in the local elections, Japzon as the second placer in the same elections cannot take his
place.

The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to meet the
one-year residency requirement set by law to qualify him to run as a mayoralty candidate in the 14
May 2007 local elections. The OSG opines that Ty was unable to prove that he intended to remain in
the Philippines for good and ultimately make it his new domicile. Nonetheless, the OSG still prays for
the dismissal of the instant Petition considering that Japzon, gathering only the second highest
number of votes in the local elections, cannot be declared the duly elected Mayor of the Municipality
of General Macarthur, Eastern Samar, even if Ty is found to be disqualified from running for the said
position. And since it took a position adverse to that of the COMELEC, the OSG prays from this
Court to allow the COMELEC to file its own Comment on Japzon’s Petition. The Court, however, no
longer acted on this particular prayer of the COMELEC, and with the submission of the Memoranda
by Japzon, Ty, and the OSG, it already submitted the case for decision.

The Court finds no merit in the Petition at bar.

There is no dispute that Ty was a natural-born Filipino. He was born and raised in the Municipality of
General Macarthur, Eastern Samar, Philippines. However, he left to work in the USA and eventually
became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking
his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the
Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of
Republic Act No. 9225.16 At this point, Ty still held dual citizenship, i.e., American and Philippine. It
was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and,
resultantly, became a pure Philippine citizen again.

It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born Filipino
may reacquire or retain17 his Philippine citizenship despite acquiring a foreign citizenship, and
provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would
reveal that it does not at all touch on the matter of residence of the natural-born Filipino taking
advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the
reacquisition or retention of Philippine citizenship; nor does it mention any effect of such
reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-
born Filipino. Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is
only logical and consistent with the general intent of the law to allow for dual citizenship. Since a
natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may
establish residence either in the Philippines or in the foreign country of which he is also a citizen.

Residency in the Philippines only becomes relevant when the natural-born Filipino with dual
citizenship decides to run for public office.

Section 5(2) of Republic Act No. 9225 reads:

SEC. 5. Civil and Political Rights and Liabilities. – Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:

xxxx

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding
such public office as required by the Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath.

Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or retained his
Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the
qualifications for holding such public office as required by the Constitution and existing laws; and (2)
make a personal and sworn renunciation of any and all foreign citizenships before any public officer
authorized to administer an oath.

That Ty complied with the second requirement is beyond question. On 19 March 2007, he personally
executed a Renunciation of Foreign Citizenship before a notary public. By the time he filed his
Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern
Samar, on 28 March 2007, he had already effectively renounced his American citizenship, keeping
solely his Philippine citizenship.

The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the qualifications
required by the Constitution and existing laws.

Article X, Section 3 of the Constitution left it to Congress to enact a local government code which
shall provide, among other things, for the qualifications, election, appointment and removal, term,
salaries, powers and functions and duties of local officials, and all other matters relating to the
organization and operation of the local units.

Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local
Government Code of 1991, Section 39 of which lays down the following qualifications for local
elective officials:

SEC. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he
intends to be elected; a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or dialect.

xxxx

(c) Candidates for the position of mayor or vice mayor of independent component cities, component
cities, or municipalities must be at least twenty-one (21) years of age on election day.

The challenge against Ty’s qualification to run as a candidate for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, centers on his purported failure to meet the one-
year residency requirement in the said municipality.
The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or
"habitation," but rather to "domicile" or legal residence, that is, "the place where a party actually or
constructively has his permanent home, where he, no matter where he may be found at any given
time, eventually intends to return and remain (animus manendi)."18

A domicile of origin is acquired by every person at birth. It is usually the place where the child’s
parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of
choice). In Coquilla,19 the Court already acknowledged that for an individual to acquire American
citizenship, he must establish residence in the USA. Since Ty himself admitted that he became a
naturalized American citizen, then he must have necessarily abandoned the Municipality of General
Macarthur, Eastern Samar, Philippines, as his domicile of origin; and transferred to the USA, as his
domicile of choice.

As has already been previously discussed by this Court herein, Ty’s reacquisition of his Philippine
citizenship under Republic Act No. 9225 had no automatic impact or effect on his
residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain
his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the
option to again establish his domicile in the Municipality of General Macarthur, Eastern Samar,
Philippines, said place becoming his new domicile of choice. The length of his residence therein
shall be determined from the time he made it his domicile of choice, and it shall not retroact to the
time of his birth.

How then could it be established that Ty indeed established a new domicile in the Municipality of
General Macarthur, Eastern Samar, Philippines?

In Papandayan, Jr. v. Commission on Elections,20 the Court provided a summation of the different
principles and concepts in jurisprudence relating to the residency qualification for elective local
officials. Pertinent portions of the ratio in Papandayan are reproduced below:

Our decisions have applied certain tests and concepts in resolving the issue of whether or not a
candidate has complied with the residency requirement for elective positions. The principle of
animus revertendi has been used to determine whether a candidate has an "intention to return" to
the place where he seeks to be elected. Corollary to this is a determination whether there has been
an "abandonment" of his former residence which signifies an intention to depart therefrom. In Caasi
v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of
Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on
the ground that respondent’s immigration to the United States in 1984 constituted an abandonment
of his domicile and residence in the Philippines. Being a green card holder, which was proof that he
was a permanent resident or immigrant of the United States, and in the absence of any waiver of his
status as such before he ran for election on January 18, 1988, respondent was held to be
disqualified under §68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881).

In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was
proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of
Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a
natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the
HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or "intent to
return," stating that his absence from his residence in order to pursue studies or practice his
profession as a certified public accountant in Manila or his registration as a voter other than in the
place where he was elected did not constitute loss of residence. The fact that respondent made
periodical journeys to his home province in Laoag revealed that he always had animus revertendi.
In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained
that the determination of a person’s legal residence or domicile largely depends upon the intention
that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina
Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988
and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC
for lack of residence and registration qualifications, not being a resident nor a registered voter of
Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her
residence one year before the election by registering at Kananga, Leyte to qualify her to run for the
position of governor of the province of Leyte was proof that she considered herself a resident of
Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had
established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she
ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to
show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her
husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did
not signify an intention to continue her residence after leaving that place.

In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence" are
synonymous. The term "residence," as used in the election law, imports not only an intention to
reside in a fixed place but also personal presence in that place, coupled with conduct indicative of
such intention. "Domicile" denotes a fixed permanent residence to which when absent for business
or pleasure, or for like reasons, one intends to return. In that case, petitioner Philip G. Romualdez
established his residence during the early 1980’s in Barangay Malbog, Tolosa, Leyte. It was held
that the sudden departure from the country of petitioner, because of the EDSA People’s Power
Revolution of 1986, to go into self-exile in the United States until favorable conditions had been
established, was not voluntary so as to constitute an abandonment of residence. The Court
explained that in order to acquire a new domicile by choice, there must concur (1) residence or
bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon
the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose
to remain in or at the domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the new domicile must be
actual.

Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the
decisive factor in determining whether or not an individual has satisfied the residency qualification
requirement.

As espoused by Ty, the issue of whether he complied with the one-year residency requirement for
running for public office is a question of fact. Its determination requires the Court to review, examine
and evaluate or weigh the probative value of the evidence presented by the parties before the
COMELEC.

The COMELEC, taking into consideration the very same pieces of evidence presently before this
Court, found that Ty was a resident of the Municipality of General Macarthur, Eastern Samar, one
year prior to the 14 May 2007 local elections. It is axiomatic that factual findings of administrative
agencies, such as the COMELEC, which have acquired expertise in their field are binding and
conclusive on the Court. An application for certiorari against actions of the COMELEC is confined to
instances of grave abuse of discretion amounting to patent and substantial denial of due process,
considering that the COMELEC is presumed to be most competent in matters falling within its
domain.21

The Court even went further to say that the rule that factual findings of administrative bodies will not
be disturbed by courts of justice, except when there is absolutely no evidence or no substantial
evidence in support of such findings, should be applied with greater force when it concerns the
COMELEC, as the framers of the Constitution intended to place the COMELEC—created and
explicitly made independent by the Constitution itself—on a level higher than statutory administrative
organs. The factual finding of the COMELEC en banc is therefore binding on the Court.22

The findings of facts of quasi-judicial agencies which have acquired expertise in the specific matters
entrusted to their jurisdiction are accorded by this Court not only respect but even finality if they are
supported by substantial evidence. Only substantial, not preponderance, of evidence is necessary.
Section 5, Rule 133 of the Rules of Court provides that in cases filed before administrative or quasi-
judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might accept as adequate to justify a
conclusion.23

The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First
Division and en banc, respectively, were both supported by substantial evidence and are, thus,
binding and conclusive upon this Court.

Ty’s intent to establish a new domicile of choice in the Municipality of General Macarthur, Eastern
Samar, Philippines, became apparent when, immediately after reacquiring his Philippine citizenship
on 2 October 2005, he applied for a Philippine passport indicating in his application that his
residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur,
Eastern Samar. For the years 2006 and 2007, Ty voluntarily submitted himself to the local tax
jurisdiction of the Municipality of General Macarthur, Eastern Samar, by paying community tax and
securing CTCs from the said municipality stating therein his address as A. Mabini St., Barangay 6,
Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty applied for and was registered as a
voter on 17 July 2006 in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern
Samar.

In addition, Ty has also been bodily present in the Municipality of General Macarthur, Eastern
Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over a year prior to the
14 May 2007 local elections. Japzon maintains that Ty’s trips abroad during said period, i.e., to
Bangkok, Thailand (from 14 to 18 July 2006), and to the USA (from 31 October 2006 to 19 January
2007), indicate that Ty had no intention to permanently reside in the Municipality of General
Macarthur, Eastern Samar, Philippines. The COMELEC First Division and en banc, as well as this
Court, however, view these trips differently. The fact that Ty did come back to the Municipality of
General Macarthur, Eastern Samar, Philippines, after said trips, is a further manifestation of his
animus manendi and animus revertendi.

There is no basis for this Court to require Ty to stay in and never leave at all the Municipality of
General Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007 local
elections so that he could be considered a resident thereof. To the contrary, the Court has previously
ruled that absence from residence to pursue studies or practice a profession or registration as a
voter other than in the place where one is elected, does not constitute loss of residence.24 The Court
also notes, that even with his trips to other countries, Ty was actually present in the Municipality of
General Macarthur, Eastern Samar, Philippines, for at least nine of the 12 months preceding the 14
May 2007 local elections. Even if length of actual stay in a place is not necessarily determinative of
the fact of residence therein, it does strongly support and is only consistent with Ty’s avowed intent
in the instant case to establish residence/domicile in the Municipality of General Macarthur, Eastern
Samar.

Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality of General
Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year residency requirement,
so Ty could run as a mayoralty candidate in the 14 May 2007 elections. In Aquino v.
COMELEC,25 the Court did not find anything wrong in an individual changing residences so he could
run for an elective post, for as long as he is able to prove with reasonable certainty that he has
effected a change of residence for election law purposes for the period required by law. As this Court
already found in the present case, Ty has proven by substantial evidence that he had established
residence/domicile in the Municipality of General Macarthur, Eastern Samar, by 4 May 2006, a little
over a year prior to the 14 May 2007 local elections, in which he ran as a candidate for the Office of
the Mayor and in which he garnered the most number of votes.

Finally, when the evidence of the alleged lack of residence qualification of a candidate for an elective
position is weak or inconclusive and it clearly appears that the purpose of the law would not be
thwarted by upholding the victor’s right to the office, the will of the electorate should be respected.
For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters.26 To
successfully challenge Ty’s disqualification, Japzon must clearly demonstrate that Ty’s ineligibility is
so patently antagonistic to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people would ultimately create greater prejudice to
the very democratic institutions and juristic traditions that our Constitution and laws so zealously
protect and promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to be
Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines.

WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice
 CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

1 Review of Judgments and Final Orders or Resolutions of the Commission on Elections and
the Commission on Audit.

2 Certiorari, Prohibition and Mandamus.

3Penned by Commissioner Romeo A. Brawner with Presiding Commissioner Resurreccion

Z. Borra, concurring; rollo, pp. 29-36.

4Penned by Commissioner Nicodemo T. Ferrer with Chairman Benjamin S. Abalos, Sr. and
Commissioners Resurreccion Z. Borra, Florentino A. Tuason, Jr., Romeo A. Brawner, and
Rene V. Sarmiento, concurring; id. at 37-40.

5
Records, pp. 1-3.

6 Id. at 28-34.

7 Id. at 51.

8 Rollo, pp. 29-36.

9 Id. at 33.

10 Id. at 34-35.

11 Id. at 35.

12 Id. at 37-40.

13 Id. at 38-39.

14 Id. at 10.

15 Id. at 18.

According to Section 2 of Republic Act No. 9225, natural-born citizens of the Philippines
16

who have lost their Philippine citizenship by reason of their naturalization as citizens of a
foreign country are deemed to have reacquired their Philippine citizenship upon taking the
oath of allegiance to the Republic of the Philippines.

17Depending on when the concerned natural-born Filipino acquired foreign citizenship: if

before the effectivity of Republic Act No. 9225 on 17 September 2003, he may reacquire his
Philippine citizenship; and if after the effectivity of the said statute, he may retain his
Philippine citizenship.

18 Coquilla v. Commission on Elections, 434 Phil. 861, 871-872 (2002).

19 Id.

20 430 Phil. 754, 768-770 (2002).

21 Matalam v. Commission on Elections, 338 Phil. 447, 470 (1997).

22Dagloc v. Commision on Elections, 463 Phil. 263, 288 (2003); Mastura v. Commission on
Elections, 349 Phil. 423, 429 (1998).

23 Hagonoy Rural Bank v. National Labor Relations Commission, 349 Phil. 220, 232 (1998).

24Co v. Electoral Tribunal of the House of Representatives, G.R. Nos. 92191-92, 30 July
1991, 199 SCRA 692, 715-716.

25 G.R. No. 120265, 18 September 1995, 248 SCRA 400.

26
Papandayan, Jr. v. Commission on Elections, supra note 20 at 773-774.
G.R. Nos. 178831-32 April 1, 2009

JOCELYN SY LIMKAICHONG, Petitioner,

vs.
COMMISSION ON ELECTIONS, NAPOLEON N. CAMERO and RENALD F.
VILLANDO, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 179120 April 1, 2009

LOUIS C. BIRAOGO, Petitioner,

vs.
HON. PROSPERO NOGRALES, Speaker of the House of Representatives of the Congress of
the Philippines, and JOCELYN SY LIMKAICHONG, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. Nos. 179132-33 April 1, 2009

OLIVIA P. PARAS, Petitioner,

vs.
HON. PROSPERO NOGRALES, in his capacity as Speaker of the House of Representatives;
HON. ROBERTO NAZARENO, in his capacity as Secretary General of the House of
Representatives; HON. RHODORA SEVILLA, in her capacity as Deputy Secretary General for
Finance of the House of Representatives; THE COMMISSION ON ELECTIONS and JOCELYN
SY LIMKAICHONG, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. Nos. 179240-41 April 1, 2009

RENALD F. VILLANDO, Petitioner,

vs.
COMMISSION ON ELECTIONS and JOCELYN SY LIMKAICHONG, Respondents

DECISION

PERALTA, J.:

Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of
the House of Representatives, the jurisdiction of the House of Representatives Electoral Tribunal
begins

over election contests relating to his election, returns, and qualifications, and mere allegation as to
the invalidity of her proclamation does not divest the Electoral Tribunal of its jurisdiction.

At the core of these contentious consolidated petitions are: (1) the Joint Resolution1 of the
Commission on Elections (COMELEC) Second Division dated May 17, 2007, disqualifying Jocelyn
D. Sy Limkaichong (Limkaichong) from running as a congressional candidate for the First District of
Negros Oriental; (2) the COMELEC En BancResolution2 dated June 29, 2007, affirming her
disqualification; and (3) the COMELEC En Banc Resolution3 dated August 16, 2007, resolving that
all pending incidents relating to her qualifications should now be determined by the House of
Representatives Electoral Tribunal (HRET).

The facts are uncontroverted. On March 26, 2007, Limkaichong filed with the COMELEC her
Certificate of Candidacy4 (COC) for the position of Representative of the First District of Negros
Oriental.

In the following weeks, two (2) petitions for her disqualification were instituted before the COMELEC
by concerned citizens coming from her locality. On April 4, 2007, Napoleon Camero, a registered
voter of La Libertad, Negros Oriental, filed the petition for her disqualification on the ground that she
lacked the citizenship requirement of a Member of the House of Representatives. The petition, which
was docketed as SPA No. (PES) A07-006,5 alleged that she is not a natural-born Filipino because
her parents were Chinese citizens at the time of her birth. On April 11, 2007, Renald F. Villando, also
a registered voter of the same locality, filed the second petition on the same ground of citizenship,
docketed as SPA (PES) No. A07-007.6 He claimed that when Limkaichong was born, her parents
were still Chinese citizens as the proceedings for the naturalization of Julio Ong Sy, her father, never
attained finality due to procedural and substantial defects. Both petitions prayed for the cancellation
of Limkaichong's COC and for the COMELEC to strike out her name from the list of qualified
candidates for the Representative of the First District of Negros Oriental.

In her separate Answers7 to the petitions, Limkaichong claimed that she is a natural-born
Filipino since she was born to a naturalized Filipino father and a natural-born Filipino
mother, who had reacquired her status as such due to her husband's naturalization. Thus, at the
time of her birth on November 9, 1959, nineteen (19) days had already passed after her father took
his Oath of Allegiance on October 21, 1959 and after he was issued a Certificate of Naturalization on
the same day. She contended that the COMELEC should dismiss the petitions outright for lack of
cause of action. Citing Salcedo II v. Commission on Elections,8 she averred that a petition filed
before an election, questioning the qualification of a candidate, should be based on Section 78,9 in
relation to Section 7410 of the Omnibus Election Code (OEC),11 and not under Sections 6812 and 74
thereof in relation to Section 1,13 Rule 25 of the COMELEC Rules of Procedure14 and Section
5,15 paragraph C (3.a) of COMELEC Resolution No. 7800.16 She also contended that the petitions
were dismissible on the ground that they were in the nature of a collateral attack on her and her
father’s citizenships, in contravention of the well-established rule that attack on one's citizenship may
only be made through a direct action for its nullity.

The COMELEC consolidated the two (2) petitions and re-docketed them as SPA Nos. 07-24717 and
07-248,18entitled IN THE MATTER OF THE PETITION TO DISQUALIFY JOCELYN SY
LIMKAICHONG FROM HER CANDIDACY AS FIRST DISTRICT REPRESENTATIVE OF NEGROS
ORIENTAL (herein referred to as the disqualification cases), which remained pending on May 14,
2007, when the National and Local Elections were conducted.

After the casting, counting and canvassing of votes in the said elections, Limkaichong emerged as
the winner with 65,708 votes19 or by a margin of 7,746 votes over another congressional candidate,
Olivia Paras20 (Paras), who obtained 57,962.

On May 15, 2007, Paras filed with the COMELEC a Very Urgent Motion for Leave to Intervene
and to Suspend the Proclamation of Jocelyn Sy Limkaichong as Winning Candidate of the
First District of Negros Oriental.21

In a Joint Resolution22 dated May 17, 2007, the COMELEC Second Division granted the petitions in
the disqualification cases, disqualified Limkaichong as a candidate for Representative of the First
District of Negros Oriental, directed the Provincial Supervisor of the COMELEC to strike out her
name from the list of eligible candidates, and for the Provincial Board of Canvassers (PBOC) to
suspend her proclamation. In disposing the cases, the COMELEC Second Division made the
following ratiocination:

On the substantial issue of whether respondent Jocelyn Sy-Limkaichong is disqualified to run for the
congressional seat of the First District of Negros Oriental on the ground that she is not a natural-born
Filipino, we hold that she is so disqualified.

Petitioners have successfully discharged their burden of proof and has convincingly shown with
pieces of documentary evidence that Julio Ong Sy, father of herein respondent Jocelyn Sy-
Limkaichong, failed to acquire Filipino citizenship in the naturalization proceedings which he
underwent for the said purpose.

An examination of the records of Special Case No. 1043 would reveal that the Office of the
Solicitor General was deprived of its participation in all the stages of the proceedings therein,
as required under Commonwealth Act No. 473 or the Revised Naturalization Law and Republic Act
No. 530, An Act Making Additional Provisions for Naturalization.

xxx

The documents presented by petitioners showed that the OSG was not furnished copies of two
material orders of the trial court in the said proceedings. One was the July 9, 1957
Order granting his petition for naturalization and the other was the September 21, 1959
Order declaring Julio Ong Sy as a Filipino citizen.

Moreover, from a perusal of the same page 171 of the OSG logbook, we have determined that the
OSG did not receive a notice for the hearing conducted by the trial court on July 9, 1959, prior
to its issuance of the September 12, 1959 Order declaring Julio Ong Sy as a Filipino citizen.

As correctly pointed out by petitioners, this was fatal to the naturalization proceedings of Julio
Ong Sy, and prevented the same from gaining finality. The leading case in the matter is Republic
v. Hon. Gabriel V. Valero, 136 SCRA 617 (May 31, 1985), wherein the Supreme Court declared:

And as though that was not enough, the hearing prior to the oathtaking of respondent Tan was
conducted without the required notice to the Solicitor General. It is true, as it appeared later, that
Fiscal Veluz, Jr. was authorized by the Solicitor General to represent the Government in the hearing
of the application for naturalization. That authority, however, does not extend to Fiscal [Veluz’s] right
to appear for the State in the hearing preparatory to the oathtaking. Private respondent Tan was
therefore under legal obligation to serve copy of his motion to be allowed to take his oath of
allegiance as a Filipino citizen upon the Solicitor General which was not done.

Respondent argues that upon his taking of the Oath of Allegiance, Julio Ong Sy became a Filipino
citizen for all intents and purposes, with all the rights appurtenant thereto.

This argument does not hold water, as was held by the Supreme Court in the same case of Republic
v. Valero, supra:

That private respondent Tan had already taken his oath of allegiance does not in any way legalize
the proceedings relative thereto which is pregnant with legal infirmities. Compounding these
irregularities is the fact that Tan was allowed to take his oath even before the expiration of the thirty
(30)-day period within which an appeal may be made thus making the said oath not only highly
improper but also illegal.

In the same case, the Supreme Court added:

To sustain the same would be to sanction a monstrosity known as citizenship by estoppel. The grant
of naturalization under such circumstances is illegal and cancellation thereof may be had at any
time. Neither estoppel nor res judicata may be set up as a bar from instituting the necessary
proceedings to nullify the certificate of naturalization so issued.

Another glaring defect in the said proceedings was the fact that Julio Ong Sy took his Oath of
Allegiance on October 21, 1959, which was exactly thirty (30) days after his declaration as a
naturalized Filipino.

Even granting that the OSG was notified of the September 21, 1959 Order, this was still one day
short of the reglementary period required under Sections 11 and 12 of C.A. No. 473, above-cited.

The thirty-day reglementary period is so required under the law so that the OSG could make known
his objections and to appeal from the order of the trial court declaring the petitioner a naturalized
Filipino citizen. This is also the reason why a copy of the petitioner’s motion to take his oath of
allegiance has to be furnished to the OSG.

The respondent insists that naturalization proceedings are in rem and are binding on the whole
world.

She would have been correct had all the necessary parties to the case been informed of the same.
The OSG, being the counsel for the government, has to participate in all the proceedings so that it
could be bound by what has transpired therein. Lacking the participation of this indispensable party
to the same, the proceedings are null and void and, hence, no rights could arise therefrom.

From all the foregoing, therefore, it could be seen that Julio Ong Sy did not acquire Filipino
citizenship through the naturalization proceedings in Special Case No. 1043. Thus, he was
only able to transmit to his offspring, Chinese citizenship.

Respondent Jocelyn Sy-Limkaichong being the daughter of Julio Ong Sy, and having been born on
November 9, 1959, under the 1935 Philippine Constitution, is a Chinese national, and
is disqualified to run as First District Representative of Negros Oriental.

WHEREFORE, the Petitions are GRANTED and Jocelyn D. Sy-Limkaichong is declared as

DISQUALIFIED from her candidacy for Representative of the First District of Negros Oriental.

The Provincial Supervisor of the Commission on Elections of Negros Oriental is hereby directed to
strike out the name JOCELYN SY-LIMKAICHONG from the list of eligible candidates for the said
position, and the concerned Board of Canvassers is hereby directed to hold and/or suspend the
proclamation of JOCELYN SY-LIMKAICHONG as winning candidate, if any, until this decision has
become final.

SO ORDERED.23

The PBOC received the Joint Resolution of the COMELEC Second Division on the evening of May
17, 2007, and accordingly suspended the proclamation of Limkaichong.24
The following day, or on May 18, 2007, the COMELEC En Banc issued Resolution No.
806225 adopting the policy-guidelines of not suspending the proclamation of winning candidates
with pending disqualification caseswhich shall be without prejudice to the continuation of the
hearing and resolution of the involved cases.

On May 20, 2007, Limkaichong filed with the COMELEC a Motion for Reconsideration of the
Joint Resolution of May 17, 2007 and Urgent Motion to Lift the Order Suspending
Proclamation.26

On May 22, 2007, Limkaichong filed another motion for the lifting of the directive suspending her
proclamation, insisting that she should be proclaimed as the winner in the congressional race
pursuant to COMELEC Resolution No. 8062.27 On same date, Villando, one of the petitioners in the
disqualification cases, filed an Urgent Manifestation Clarifying COMELEC Resolution No. 8062
with Motion,28 praying that the COMELEC should not lift the suspension of Limkaichong’s
proclamation.

On May 25, 2007, the PBOC, in compliance with COMELEC Resolution No. 8062, reconvened and
proclaimed Limkaichong as the duly elected Member of the House of Representatives for the First
District of Negros Oriental.29

Thereafter, or on May 30, 2007, Paras filed with the COMELEC a Petition to Nullify and/or Annul
the Proclamation of Jocelyn Sy-Limkaichong as First District Representative of Negros
Oriental in relation to the May 17, 2007 Joint Resolution of the COMELEC Second
Division,30 stating, among others, that Limkaichong's proclamation violated the earlier order of the
COMELEC Second Division suspending her proclamation. The petition, docketed as SPC No. 07-
211, was dismissed by the COMELEC First Division,31ratiocinating that the disqualification cases
were not yet final when Limkaichong was proclaimed. Accordingly, her proclamation which was valid
or legal, effectively divested the COMELEC of its jurisdiction over the cases. The COMELEC First
Division explained its ruling in this wise:

The Commission has made its intention in issuing Resolution No. 8062 very clear in that there
shall be no suspension of proclamation of winning candidates with pending disqualification
cases involving, among others, issues of citizenship. As the disqualification cases involving
Limkaichong were still pending reconsideration by the en banc, the underlying policy which gave rise
to the issuance of the Resolution: to respect the will of the Filipino electorate, applies to the
suspension of proclamation of the winning congressional candidate for the First District of Negros
Oriental.

WHEREFORE, the instant petition is dismissed.

SO ORDERED. (Emphasis ours)

Dissatisfied, Paras moved for the reconsideration of the above Resolution.32

Meanwhile, in a Resolution33 dated June 29, 2007, the COMELEC En Banc, in an equally divided
vote of 3:3, denied Limkaichong’s motion for reconsideration of the Joint Resolution of the
COMELEC Second Division in the disqualification cases. The pertinent portions of the Resolution
denying her motion reads:

Anent the issue of jurisdiction, We rule that the Commission has jurisdiction to rule on Respondent
Limkaichong’s Motion for Reconsideration notwithstanding her proclamation as it is only this
Commission, and not the House of Representatives Electoral Tribunal (HRET), which has
jurisdiction to review resolutions or decisions of the COMELEC, whether issued by a division or en
banc. As stated by the Supreme Court in the leading case of Codilla v. De Venecia, G.R. No.
150605, December 10, 2002, respondent herself seasonably challenged the validity of the resolution
of the Second Division in her motion for reconsideration. Hence, the issue of respondent’s
disqualification was still within the exclusive jurisdiction of the Comelec En Banc to resolve,
and HRET cannot assume jurisdiction on the matter, to wit:

To stress again, at the time of the proclamation of respondent Locsin, the validity of the Resolution
of the COMELEC Second Division was seasonably challenged by the petitioner in his Motion for
Reconsideration. The issue was still within the exclusive jurisdiction of the Comelec En Banc to
resolve. Hence, the HRET cannot assume jurisdiction over the matter.

In Puzon v. Cua, even the HRET ruled that the "doctrinal ruling that once a proclamation has been
made and a candidate-elect has assumed office, it is this Tribunal that has jurisdiction over an
election contest involving members of the House of Representatives, could not have been
immediately applicable due to the issue regarding the validity of the very COMELEC
pronouncements themselves." This is because the HRET has no jurisdiction to review resolutions or
decisions of the COMELEC, whether issued by a division or en banc.

Finally, in disposing the Opposition to the Motion for Reconsideration with Partial Motion for
Reconsideration filed by intervenor Olivia P. Paras praying that she be proclaimed as the winning
candidate for First District Representative, suffice it to say that in the same case of Codilla v. De
Venecia, supra, the Supreme Court held, thus:

More brazen is the proclamation of respondent Locsin which violates the settled doctrine that the
candidate who obtains the second highest number of votes may not be proclaimed winner in case
the winning candidate is disqualified. In every election, the people’s choice is the paramount
consideration and their expressed will must, at all times, be given effect. When the majority speaks
and elects into office a candidate by giving him the highest number of votes cast in the election for
the office, no one can be declared elected in his place. In Domino v. COMELEC, this Court ruled,
viz.:

It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed winner
and imposed as representative of a constituency, the majority of which have positively declared
through their ballots that they do not choose him. To simplistically assume that the second placer
would have received that (sic) other votes would be to substitute our judgment for the mind of the
voters. He could not be considered the first among the qualified candidates because in a field which
excludes the qualified candidate, the conditions would have substantially changed.

xxx

The effect of a decision declaring a person ineligible to hold an office is only that the election fails
entirely, that the wreath of victory cannot be transferred from the disqualified winner to the
repudiated loser because the law then as now only authorizes a declaration in favor of the person
who has obtained a plurality of votes, and does not entitle the candidate receiving the next highest
number of votes to be declared elected. In such case, the electors have failed to make a choice and
the election is a nullity. To allow the defeated and repudiated candidate to take over the elective
position despite his rejection by the electorate is to disenfranchise the electorate without any fault on
their part and to undermine the importance and meaning of democracy and the people’s right to
elect officials of their choice.
All told, We find no cogent reason to disturb the findings of this Commission (Second
Division) in its Joint Resolution promulgated on May 17, 2007.

WHEREFORE, premises considered, the instant Motion for Reconsideration of Respondent Jocelyn
Sy-Limkaichong is hereby DENIED.

The Opposition to the Motion for Reconsideration with Partial Motion for Reconsideration filed by
Intervenor Olivia P. Paras praying that she be proclaimed as the winning candidate for the First
District Representative of Negros Oriental is hereby denied for lack of merit.

SO ORDERED.34

On July 3, 2007, Limkaichong filed in the disqualification cases against her a Manifestation and
Motion for Clarification and/or To Declare the Petitions as Dismissed in Accordance with
Section 6, Rule 18 of the COMELEC Rules of Procedure.35 She contended that, with her
proclamation, her having taken her oath of office and her assumption of the position, the COMELEC
was divested of jurisdiction to hear the disqualification cases. She further contended that, following
Section 6,36 Rule 18 of the COMELEC Rules of Procedure, the disqualification cases would have to
be reheard, and if on rehearing, no decision would be reached, the action or proceedings should be
dismissed, because the COMELEC En Banc was equally divided in opinion when it resolved her
motion for reconsideration.

On an even date, Paras wrote the House of Representatives informing it of the COMELEC En
Banc Resolution dated June 29, 2007 upholding the Joint Resolution of the COMELEC Second
Division dated May 17, 2007, which disqualified Limkaichong as a congressional candidate.37

In the interim, then Speaker of the House of Representatives Jose de Venecia, Jr. (De Venecia)
allowed Limkaichong to officially assume the office as a Member of the House of Representatives on
July 23, 2007, as shown in the Journal of the House of Representatives.38

Despite Limkaichong’s repeated pleas for the resolution of her manifestation and motion for
clarification,39 the COMELEC did not resolve the same. Hence, on August 1, 2007, she filed with this
Court a Petition for Certiorari40under Rule 65, in relation to Rule 64 of the 1997 Rules of Civil
Procedure docketed as G.R. Nos. 178831-32 praying for the annulment of the May 17, 2007 Joint
Resolution of the COMELEC Second Division and the June 29, 2007 Resolution of the
COMELEC En Banc in the disqualification cases for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. She averred that since she was already proclaimed on
May 25, 2007 as Representative of the First District of Negros Oriental, had assumed office on June
30, 2007, and had started to perform her duties and functions as such, the COMELEC had lost its
jurisdiction and it is now the HRET which has jurisdiction over any issue involving her qualifications
for the said office.

On August 16, 2007, the COMELEC En Banc ruled on Limkaichong’s manifestation and motion for
clarification,41with the following disquisition:

In view of the proclamation of Limkaichong and her subsequent assumption of office on June
30, 2007, this Commission rules that all pending incidents relating to the qualifications of
Limkaichong should now be determined by the House of Representatives Electoral
Tribunal in accordance with the above-quoted provision of the Constitution.
WHEREFORE, premises considered, this Commission resolved, as it hereby resolves, that all
pending incidents relating to the qualifications of Jocelyn S. Limkaichong as Member of the House of
Representatives should now be determined by the House of Representatives Electoral Tribunal.

SO ORDERED. (Emphasis ours)

On August 24, 2007, Louis Biraogo (Biraogo), as a citizen and a taxpayer, filed with the Court
a Petition for Prohibition and Injunction with Preliminary Injunction and/or Temporary
Restraining Order42 under Section 2, Rule 65 of the 1997 Rules of Civil Procedure, docketed as
G.R. No. 179120, seeking to enjoin and permanently prohibit: (a) De Venecia from allowing
Limkaichong to sit in the House of Representatives and participate in all its official activities; and (b)
Limkaichong from holding office as its Member.43

Meanwhile, on August 28, 2007, Paras has instituted before the Court a Petition for Quo Warranto,
Prohibition and Mandamus with Prayer for the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction44 under Rule 65 of the 1997 Rules of Civil Procedure,
docketed as G.R. Nos. 179132-33, seeking, among others, the ouster of Limkaichong from the
House of Representatives on account of her disqualification and for the holding of special elections
to fill the vacancy created by such.45

On even date, the COMELEC Second Division promulgated a Resolution46 denying Villando's motion
to suspend the proclamation of Limkaichong, which denial was affirmed by the COMELEC En
Banc in a Resolution47 dated February 1, 2008.

On September 5, 2008, Villando also filed with this Court a Petition for Certiorari and Injunction
with Preliminary Injunction and Temporary Restraining Order48 under Rule 65 of the 1997 Rules
of Civil Procedure, docketed as G.R. Nos. 179240-41, contending, among others, that the
COMELEC En Banc gravely abused its discretion in issuing the August 16, 2007
Resolution49 because it still acted on Limchaikong’s manifestation and motion for clarification,
notwithstanding that the same was not set for hearing and considering that its June 29, 2007
Resolution had already become final and executory.

As the four (4) petitions are interrelated, the Court resolved to consolidate them in its Resolutions
dated September 4 and 11, 2007.

The Court heard the parties in oral argument on August 26, 2008, during which the following issues
were tackled:

1. Whether the proclamation of Limkaichong by the Provincial Board of Canvassers of

Negros Oriental is valid;

2. Whether said proclamation divested the Commission on Elections of jurisdiction to resolve

the issue of Limkaichong's citizenship;

3. Whether the House of Representatives Electoral Tribunal shall assume jurisdiction, in lieu
of the COMELEC, over the issue of Limkaichong's citizenship;

4. Whether the COMELEC Second Division and the COMELEC En Banc correctly ruled that
Limkaichong is disqualified from running as a Member of the House of Representatives on
the ground that she is not a natural-born citizen;
 5. Whether the COMELEC disqualification of Limkaichong is final and executory; and,

6. Whether the Speaker of the House of Representatives may be compelled to prohibit

Limkaichong from assuming her duties as a Member of the House of Representatives.

On same day, the Court required the parties to simultaneously file within twenty (20) days their
respective memoranda, after which the petitions shall be deemed submitted for resolution, with or
without the memoranda.

Section 6, Article VI of the 1987 Philippine Constitution provides for the qualification of a Member
of the House of Representatives, thus:

Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born

citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to
read and write, and, except the party-list representatives, a registered voter in the district in which he
shall be elected, and a resident thereof for a period of not less than one year immediately preceding
the day of the election.

When Limkaichong filed her COC, she stated therein that she is a natural-born Filipino citizen. It was
not true, according to the petitioners in the disqualification cases, because her father remained a
Chinese citizen at the time of her birth. The COMELEC Second Division has sided with Camero and
Villando, and disqualified Limkaichong to run as a congressional candidate in the First District of
Negros Oriental for having failed to comply with the citizenship requirement. Accordingly, her
proclamation was ordered suspended notwithstanding that she obtained the highest number of votes
during the elections. Nonetheless, she was proclaimed by the PBOC pursuant to the policy
guidelines of COMELEC En Banc Resolution No. 8062, and she has since assumed her position
and performed her functions as a Member of the House of Representatives.

Whether Limkaichong’s proclamation was valid.

The proclamation of Limkaichong was valid. The COMELEC Second Division rendered its Joint
Resolution dated May 17, 2007. On May 20, 2007, Limkaichong timely filed with the COMELEC En
Banc her motion for reconsideration as well as for the lifting of the incorporated directive suspending
her proclamation. The filing of the motion for reconsideration effectively suspended the
execution of the May 17, 2007 Joint Resolution.50Since the execution of the May 17, 2007 Joint
Resolution was suspended, there was no impediment to the valid proclamation of Limkaichong as
the winner. Section 2, Rule 19 of the COMELEC Rules of Procedure provides:

Sec. 2. Period for Filing Motions for Reconsideration. – A motion to reconsider a decision, resolution,
order or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such
motion, if not pro forma, suspends the execution for implementation of the decision,
resolution, order and ruling.

In G.R. Nos. 179132-33, Paras, however, maintained that Limkaichong was a Chinese citizen who
was disqualified to run as a congressional candidate by way of a final judgment of the COMELEC.
With that, her proclamation was questionable and the same was done in open defiance of the Joint
Resolution dated May 17, 2007 of the COMELEC Second Division. She also stressed that
Limkaichong's proclamation was procedurally defective, it appearing that one of the PBOC members
was not present on May 25, 2007, and that it took place in a restaurant and not at the provincial
capitol. Finally, she argued that Limkaichong’s proclamation was void in accordance with the Court's
pronouncement in the case of Codilla v. De Venecia.51

The Office of the Solicitor General (OSG) filed its Comment on the petition of Paras, expressing its
support for the position taken by the latter.

A perusal of the arguments advanced by Paras and the OSG does not sway the Court to rule
against the validity of Limkaichong’s proclamation. No less than the COMELEC First Division has
sustained the validity of her proclamation when it dismissed, by way of a Resolution dated June 29,
2007, the petition filed by Paras to nullify the proclamation. Not only that. The COMELEC First
Division has also adopted Limkaichong’s argument that following her valid proclamation, the
COMELEC’s jurisdiction over the disqualification cases has ceased and that the same should be
threshed out in the proper proceedings filed before the HRET. Notably, the dismissal of Paras’
petition was affirmed by the COMELEC in its Omnibus Order dated January 28, 2008.

In addition, the validity of Limkaichong's proclamation is in accordance with COMELEC En

Banc Resolution No. 8062. The disqualification cases filed against her remained pending as a result
of her timely motion for reconsideration. Villando (in G.R. Nos. 179240-41), however, maintained
that Resolution No. 8062 is invalid; hence, it could not be used as basis to validate Limkaichong's
proclamation. He argued that it must be published since it is a "policy-guideline" in the exercise of
the COMELEC’s rule-making power. As such, it cannot supersede the Joint Resolution of the
Second Division which was rendered pursuant to the COMELEC’s quasi-judicial power.

His argument is specious. Resolution No. 8062 is not only a policy- guideline. It is also an
administrative interpretation of the two (2) provisions of the 1987 Constitution, namely: (i) Section
17,52 Article VI (ii); Section 2(2),53 Article IX-C; Section 654 of R.A. 6646; and Sections 24155 and
243,56 Article XX of the OEC. As such, it does not have to comply with the due process requirement.
The term "administrative" connotes or pertains to "administration, especially management, as by
managing or conducting, directing or superintending, the execution, application, or conduct of
persons or things." It does not entail an opportunity to be heard, the production and weighing of
evidence, and a decision or resolution thereon.57 This is to be distinguished from "quasi-judicial
function," a term which applies, among others, to the action or discretion of public administrative
officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold
hearings, and draw conclusions from them, as a basis for their official action and to exercise
discretion of a judicial nature.58

Resolution No. 8062 is a valid exercise of the COMELEC’s constitutionally mandated power to
promulgate its own rules of procedure relative to the conduct of the elections.59 In adopting such
policy-guidelines for the May 14, 2007 National and Local Elections, the COMELEC had in mind the
objective of upholding the sovereign will of the people and in the interest of justice and fair play.
Accordingly, those candidates whose disqualification cases are still pending at the time of the
elections, should they obtain the highest number of votes from the electorate, shall be proclaimed
but that their proclamation shall be without prejudice to the continuation of the hearing and resolution
of the involved cases. Whereas, in this case, the COMELEC Second Division having failed to act on
the disqualification cases against Limkaichong until after the conduct of the elections, with her
obtaining the highest number of votes from the electorate, her proclamation was properly effected by
the PBOC pursuant to Resolution No. 8062.

The Court has held in the case of Planas v. COMELEC,60 that at the time of the proclamation of
Defensor, the respondent therein who garnered the highest number of votes, the Division Resolution
invalidating his certificate of candidacy was not yet final. As such, his proclamation was valid or
legal, as he had at that point in time remained qualified. Limkaichong’s situation is no different from
that of Defensor, the former having been disqualified by a Division Resolution on the basis of her not
being a natural-born Filipino citizen. When she was proclaimed by the PBOC, she was the winner
during the elections for obtaining the highest number of votes, and at that time, the Division
Resolution disqualifying her has not yet became final as a result of the motion for reconsideration.

II

Whether, upon Limkaichong's proclamation, the HRET, instead of the COMELEC, should
assume jurisdiction over the disqualification cases.

In her petition (G.R. Nos. 178831-32), Limkaichong argued that her proclamation on May 25, 2007
by the PBOC divested the COMELEC of its jurisdiction over all issues relating to her qualifications,
and that jurisdiction now lies with the HRET.

Biraogo, on the other hand, believed otherwise. He argued (in G.R. No. 179120) that the issue
concerning Limkaichong’s disqualification is still within the exclusive jurisdiction of the COMELEC En
Banc to resolve because when Limkaichong was proclaimed on May 25, 2007, the matter was still
pending resolution before the COMELEC En Banc.

We do not agree. The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the House of
Representatives, the COMELEC's jurisdiction over election contests relating to his election,
returns, and qualifications ends, and the HRET's own jurisdiction begins.61 It follows then that
the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters
pending before it at the time of the proclamation. The party questioning his qualification should now
present his case in a proper proceeding before the HRET, the constitutionally mandated tribunal to
hear and decide a case involving a Member of the House of Representatives with respect to the
latter's election, returns and qualifications. The use of the word "sole" in Section 17, Article VI of the
Constitution and in Section 25062 of the OEC underscores the exclusivity of the Electoral Tribunals'
jurisdiction over election contests relating to its members.63

Section 17, Article VI of the 1987 Constitution provides:

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns, and qualifications
of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or the House of Representatives, as the case may be,
who shall be chosen on the basis of proportional representation from the political parties and the
parties or organizations registered under the party-list system represented therein. The senior
Justice in the Electoral Tribunal shall be its Chairman.

Corollary thereto is Rule 14 of the 1998 Rules of the HRET, as amended, which states:

RULE 14. Jurisdiction. - The Tribunal is the sole judge of all contests relating to the election,
returns, and qualifications of the Members of the House of Representatives. lavv phil.zw+

The COMELEC En Banc, in its Resolution dated August 16, 2007, had given paramount
consideration to the two (2) aforementioned provisions when it stated that:
In view of the proclamation of Limkaichong and her subsequent assumption of office on June
30, 2007, this Commission rules that all pending incidents relating to the qualifications of
Limkaichong should now be determined by the House of Representatives Electoral
Tribunal in accordance with the above-quoted provision of the Constitution.

WHEREFORE, premises considered, this Commission resolved, as it hereby resolves, that all
pending incidents relating to the qualifications of Jocelyn S. Limkaichong as Member of the House of
Representatives should now be determined by the House of Representatives Electoral Tribunal.

SO ORDERED. (Emphasis supplied)

Worth citing also is the ratiocination of the COMELEC First Division when it dismissed the petition of
Paras seeking the nullity of Limkaichong's proclamation, thus:

The present situation is similar not to the factual circumstances of Codilla, which Paras invokes, but
rather to that in Planas which adheres to the general rule giving jurisdiction to the House of
Representatives Electoral Tribunal. As at the time of Limkaichong's proclamation, her disqualification
was not yet final, her proclamation was valid or legal. This Commission no longer has jurisdiction
over the case. This, notwithstanding the Second Division's directive suspending Limkaichong's
proclamation.

The Commission has made its intention in issuing Resolution No. 8062 very clear in that there shall
be no suspension of proclamation of winning candidates with pending disqualification cases,
involving, among others, issues of citizenship. As the disqualification cases involving Limkaichong
were still pending reconsideration by the En Banc, the underlying policy which gave rise to the
issuance of the resolution: to respect the will of the Filipino electorate, applies to the suspension of
proclamation of the winning Congressional candidate for the First District of Negros Oriental.

WHEREFORE, the instant petition is DISMISSED.

SO ORDERED.

Petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41) steadfastly maintained that
Limkaichong’s proclamation was tainted with irregularity, which will effectively prevent the HRET
from acquiring jurisdiction.

The fact that the proclamation of the winning candidate, as in this case, was alleged to have been
tainted with irregularity does not divest the HRET of its jurisdiction.64 The Court has shed light on this
in the case of Vinzons-Chato,65 to the effect that:

In the present case, it is not disputed that respondent Unico has already been proclaimed and taken
his oath of office as a Member of the House of Representatives (Thirteenth Congress); hence, the
COMELEC correctly ruled that it had already lost jurisdiction over petitioner Chato's petition. The
issues raised by petitioner Chato essentially relate to the canvassing of returns and alleged invalidity
of respondent Unico's proclamation. These are matters that are best addressed to the sound
judgment and discretion of the HRET. Significantly, the allegation that respondent Unico's
proclamation is null and void does not divest the HRET of its jurisdiction:

x x x [I]n an electoral contest where the validity of the proclamation of a winning candidate who has
taken his oath of office and assumed his post as congressman is raised, that issue is best
addressed to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of
proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the people's
mandate.

Further, for the Court to take cognizance of petitioner Chato's election protest against respondent
Unico would be to usurp the constitutionally mandated functions of the HRET.

In fine, any allegations as to the invalidity of the proclamation will not prevent the HRET from
assuming jurisdiction over all matters essential to a member’s qualification to sit in the House of
Representatives.

The 1998 HRET Rules, as amended, provide for the manner of filing either an election protest or a
petition for quo warranto against a Member of the House of Representatives, to wit:

Rule 16. Election protest. -- A verified petition contesting the election of any Member of the House of
Representatives shall be filed by any candidate who has duly filed a certificate of candidacy and has
been voted for the same office, within ten (10) days after the proclamation of the winner. The party
filing the protest shall be designated as the protestant while the adverse party shall be known as the
protestee.

xxx

Rule 17. Quo Warranto. -- A verified petition for quo warranto contesting the election of a Member of
the House of Representatives on the ground of ineligibility or of disloyalty to the Republic of the
Philippines shall be filed by any voter within ten (10) days after the proclamation of the winner. The
party filing the petition shall be designated as the petitioner while the adverse party shall be known
as the respondent.

xxx

Rule 19. Periods Non-Extendible. -- The ten-day period mentioned in Rules 16 and 17 is
jurisdictional and cannot be extended.

Accordingly, after the proclamation of the winning candidate in the congressional elections, the
remedy of those who may assail one’s eligibility/ineligibility/qualification/disqualification is to file
before the HRET a petition for an election protest, or a petition for quo warranto, within the period
provided by the HRET Rules. In Pangilinan v. Commission on Elections,66 we ruled that where the
candidate has already been proclaimed winner in the congressional elections, the remedy of
petitioner is to file an electoral protest with the Electoral Tribunal of the House of Representatives.

The PBOC proclaimed Limkaichong as the winner on May 25, 2007. Thus, petitioners (in G.R. Nos.
179120, 179132-33, and 179240-41) should have filed either an election protest or petition for quo
warranto within ten days from May 25, 2007. But they did not. In fact, to date, no petition of protest
or petition for quo warranto has been filed with the HRET. Verily, the ten-day prescriptive period for
initiating a contest against Limkaichong has long expired.

However, the said ten-day prescriptive period under the 1998 HRET Rules does not apply to
disqualification cases based on citizenship. Under the 1987 Constitution, Members of the House
of Representatives must be natural-born citizens not only at the time of their election but
during their entire tenure. Being a continuing requirement, one who assails a member's citizenship
or lack of it may still question the same at any time, the ten-day prescriptive period notwithstanding.
In Frivaldo v. Commission on Elections,67 the Court held that:

The argument that the petition filed with the Commission on Elections should be dismissed for
tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from
continuing to discharge his office as governor because he is disqualified from doing so as a
foreigner. Qualifications for public office are continuing requirements and must be possessed
not only at the time of appointment or election or assumption of office but during the officer’s
entire tenure. Once any of the required qualifications is lost, his title may be seasonably
challenged. If, say, a female legislator were to marry a foreigner during her term and by her
act or omission acquires his nationality, would she have the right to remain in office simply
because the challenge to her title may not longer be made within ten days from her
proclamation? x x x

This Court will not permit the anomaly of a person sitting as provincial governor in this
country while owing exclusive allegiance to another country. The fact that he was elected by
the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office
and employment only to the citizens of this country. The qualifications prescribed for elective office
cannot be erased by the electorate alone. The will of the people as expressed through the ballot
cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that
the candidate was qualified. Obviously, this rule requires strict application when the
deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he
must owe his total loyalty to this country alone, abjuring and renouncing all fealty to any other state.

However, in assailing the citizenship of the father, the proper proceeding should be in accordance
with Section 18 of Commonwealth Act No. 473 which provides that:

Sec. 18. Cancellation of Naturalization Certificate Issued: - Upon motion made in the proper
proceedings by the Solicitor General or his representative, or by the proper provincial fiscal,
the competent judge may cancel the naturalization certificate issued and its registration in
the Civil Register:

1. If it is shown that said naturalization certificate was obtained fraudulently or illegally;

2. If the person naturalized shall, within five years next following the issuance of said
naturalization certificate, return to his native country or to some foreign country and establish
his permanent residence there: Provided, That the fact of the person naturalized remaining
more than one year in his native country or the country of his former nationality, or two years
in any other foreign country, shall be considered as prima facie evidence of his intention of
taking up his permanent residence in the same:

3. If the petition was made on an invalid declaration of intention;

4. If it is shown that the minor children of the person naturalized failed to graduate from a
public or private high schools recognized by the Office of Private Education [now Bureau of
Private Schools] of the Philippines, where Philippine history, government or civics are taught
as part of the school curriculum, through the fault of their parents either by neglecting to
support them or by transferring them to another school or schools. A certified copy of the
decree canceling the naturalization certificate shall be forwarded by the Clerk of Court of the
Department of Interior [now Office of the President] and the Bureau of Justice [now Office of
the Solicitor General];
 5. If it is shown that the naturalized citizen has allowed himself to be used as a dummy in
violation of the constitutional or legal provisions requiring Philippine citizenship as a requisite
for the exercise, use or enjoyment of a right, franchise or privilege. (Emphasis supplied)

As early as the case of Queto v. Catolico,68 where the Court of First Instance judge motu proprio and
not in the proper denaturalization proceedings called to court various grantees of certificates of
naturalization (who had already taken their oaths of allegiance) and cancelled their certificates of
naturalization due to procedural infirmities, the Court held that:

x x x It may be true that, as alleged by said respondents, that the proceedings for naturalization
were tainted with certain infirmities, fatal or otherwise, but that is beside the point in this case.
The jurisdiction of the court to inquire into and rule upon such infirmities must

be properly invoked in accordance with the procedure laid down by law. Such procedure is the
cancellation of the naturalization certificate. [Section 1(5), Commonwealth Act No. 63], in the manner
fixed in Section 18 of Commonwealth Act No. 473, hereinbefore quoted, namely, "upon motion made
in the proper proceedings by the Solicitor General or his representatives, or by the proper provincial
fiscal." In other words, the initiative must come from these officers, presumably after previous
investigation in each particular case. (Emphasis supplied)

Clearly, under law and jurisprudence, it is the State, through its representatives designated by
statute, that may question the illegally or invalidly procured certificate of naturalization in the
appropriate denaturalization proceedings. It is plainly not a matter that may be raised by private
persons in an election case involving the naturalized citizen’s descendant.

III

Whether the COMELEC Second Division and the COMELEC En Banc correctly disqualified
Limkaichong on the ground that she is not a natural-born Filipino citizen.

In resolving the disqualification cases, the COMELEC Second Division relied on the entries in the
docket book of the OSG,69 the only remaining record of the naturalization proceedings,70 and ruled
on the basis thereof that the naturalization proceedings of Julio Ong Sy, Limkaichong’s father, in
Special Case No. 1043, were null and void. The COMELEC Second Division adopted Villando and
Camero’s arguments that the OSG was deprived of its participation in the said case for it was not
furnished copies of the following: (a) the July 9, 1957 Order of the Court of First Instance (CFI)
granting the petition for naturalization; and (b) the September 21, 1959 Order of the CFI declaring
Julio Ong Sy a Filipino citizen. Thus, when the latter took his oath of allegiance on October 21, 1959,
it was exactly 30 days after his declaration as a naturalized Filipino, or one day short of the
reglementary period required under Sections 11 and 12 of Commonwealth Act No. 473. Such
defects were fatal to the naturalization proceedings of Julio Ong Sy and prevented the same from
gaining finality. The COMELEC Second Division concluded that since Julio Ong Sy did not acquire
Philippine citizenship through the said naturalization proceedings, it follows that Limkaichong
remains a Chinese national and is disqualified to run as candidate and be elected as a Member of
the House of Representatives.

We cannot resolve the matter of Limkaichong’s citizenship as the same should have been
challenged in appropriate proceedings as earlier stated.

IV

Whether the COMELEC's disqualification of Limkaichong is final and executory.

In resolving this issue, pertinent is the provision of Section 13(b), Rule 18 of the 1993 COMELEC
Rules of Procedure:

Sec. 13. Finality of Decisions or Resolutions. – x x x

(b) In Special Actions and Special Cases, a decision or resolution of the Commission en banc shall
become final and executory after five (5) days from its promulgation unless restrained by the
Supreme Court.

In his Memorandum dated June 27, 2008, Biraogo stated that the Resolution of the COMELEC En
Banc in the disqualification cases became final and executory after five (5) days from its
promulgation and that the same was not restrained by this Court pursuant to Section 13(b), Rule 18
of the 1993 COMELEC Rules of Procedure. He averred that since Limkaichong received a copy of
the COMELEC En Banc Resolution dated June 29, 2007 on July 3, 2007, she had until July 8, 2007
within which to obtain a restraining order from the Court to prevent the same from becoming final
and executory. However, she did not do anything to that effect. Biraogo also averred that
Limkaichong is guilty of forum shopping; hence, her petition must be dismissed by the Court.

Instead of asking the Court for what Biraogo opined as a restraining order, Limkaichong filed with
this Court, on August 1, 2007, her petition for certiorari assailing the said COMELEC En
Banc Resolution pursuant to Section 2,71Rule 64, in relation to Rule 65, 1997 Rules of Civil
Procedure, postulating that she had thirty (30) days from July 4, 2007 within which to file the petition,
or until August 3, 2007. She cited Section 7, Article IX of the 1987 Constitution, which prescribes the
power of this Court to review decisions of the COMELEC,72 thus:

SEC. 7. Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A case
or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.

In his Comment on the petition, Villando prayed for the outright dismissal of Limkaichong’s petition
as (a) it was filed beyond the reglementary period; (b) Limkaichong engaged in prohibited forum
shopping; and (c) Limkaichong admitted that the issues raised have become moot and academic.
He also sought to declare Limkaichong in contempt of court for forum shopping.

The COMELEC, through the OSG, also filed its Comment, praying for the denial of Limkaichong's
petition and its dismissal for being moot, contending that: (a) the COMELEC En Banc Resolution
dated August 16, 2007 has rendered the instant petition moot and academic; and (b) Limkaichong
knowingly and intentionally engaged in forum shopping. The OSG argued that, without waiting for
the resolution of her Motion for Clarification and two (2) successive motions to resolve said motions
which are pending before the COMELEC En Banc, Limkaichong filed the present petition to question
the Joint Resolution dated May 17, 2007 of the COMELEC Second Division, which issues were
pending before the COMELEC En Banc. Her act of seeking relief from this Court while there were
several other incidents pending before the COMELEC, the final resolution in either one of which will
amount to res judicata in the other, clearly showed forum shopping on her part.

In her Reply to the above Comments, Limkaichong countered that she did not engage in forum
shopping, for had she waited for the COMELEC to rule on her manifestation and other motions, it
would have resulted in the expiration of the reglementary period for filing a petition
for certiorari before the Court.

The May 17, 2007 Joint Resolution of the COMELEC Second Division disqualifying Limkaichong and
suspending her proclamation cannot yet be implemented considering that she timely filed a motion
for reconsideration. Thus, pursuant to Section 13(c), Rule 18 and Section 2 Rule 19 of the
COMELEC Rules of Procedure, the Joint Resolution has not yet attained finality for it to be
implemented.

Notably, the seeming impropriety of the Resolution of the COMELEC En Banc dated June 29, 2007
has since been remedied by the promulgation of its Resolution dated August 16, 2007, recognizing
that it no longer has jurisdiction over the disqualification cases following the valid proclamation of
Limkaichong and her assumption of office as a Member of the House of Representatives.

Whether the Speaker of the House of Representatives may be compelled to prohibit

Limkaichong from assuming her duties as a Member of the House of Representatives.

Biraogo's contention was that De Venecia73 should be stopped from entering Limkaichong's name in
the Roll of Members of the House of Representatives because he has no power to allow an alien to
sit and continue to sit therein as it would amount to an unlawful exercise of his legal authority.
Moreover, Biraogo opposes Limkaichong’s assumption of office in the House of Representatives
since she is not qualified to sit therein, being a Chinese citizen and, thus, disqualified by virtue of a
final and executory judgment of the COMELEC En Banc. He relied on the COMELEC En
Banc Resolution dated June 29, 2007, which affirmed the COMELEC Second Division Joint
Resolution dated May 17, 2007 disqualifying Limkaichong from holding public office. He contended
that the said Resolution dated June 29, 2007 is already final and executory; hence, it should be
respected pursuant to the principle of res judicata.

De Venecia, on the other hand, argued that he should not be faulted for honoring the proclamation of
Limkaichong, because it had the hallmarks of regularity, and he had no power to exclude any
Member of the House of Representatives motu proprio. In their Comment on the petition,
respondents De Venecia, et al., contended that the enrollment of a Member in the Roll of Members
of the House of Representatives and his/her recognition as such becomes the ministerial duty of
the Secretary General and the House of Representatives upon presentation by such Member of a
valid Certificate of Proclamation and Oath of Office.

Respondent Nograles, as De Venecia's, substitute, filed a Memorandum dated July 16, 2008 stating
that under the circumstances, the House of Representatives, and its officials, are without recourse
except to honor the validity of the proclamation of Limkaichong until the same is

canceled, revoked or nullified, and to continue to recognize her as the duly elected Representative of
the First District of Negros Oriental until it is ordered by this Court, as it was in Codilla, to recognize
somebody else. He went on to state that after assumption by the Member-elect, or having acquired a
presumptively valid title to the office, the House of Representatives cannot, motu proprio, cancel,
revoke, withdraw any recognition given to a sitting Member or to "remove" his name from its roll, as
such would amount to a removal of such Member from his office without due process of law. Verily, it
is only after a determination by the appropriate tribunal (as in this case, the HRET), pursuant to a
final and executory order, that the Member does not have a right to the office (i.e., not being a duly
elected Member), that the House of Representatives is directed to exclude the said Member.
Their contentions are meritorious. The unseating of a Member of the House of Representatives
should be exercised with great caution and after the proper proceedings for the ouster has been
validly completed. For to arbitrarily unseat someone, who obtained the highest number of votes in
the elections, and during the pendency of the proceedings determining one’s qualification or
disqualification, would amount to disenfranchising the electorate in whom sovereignty resides.74

WHEREFORE, premises considered, the petition in G.R. Nos. 178831-32 is GRANTED and the
Joint Resolution of the COMELEC Second Division dated May 17, 2007 in SPA Nos. 07-247 and 07-
248 is REVERSED and SET ASIDE. All the other petitions (G.R. Nos. 179120, 179132-33, 179240-
41) are hereby DISMISSED.

SO ORDERED.

Original Signed
DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

On leave
ANTONIO T. CARPIO
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION<

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes

1 Rollo (G.R. Nos. 178831-32), pp. 24-36.

2 Id. at 53-66.

3 Id. at 181-183.

4 Id. at 74.

5 Id. at 75-77.

6 Id. at 82-87.

7 Id. at 100-144.

8G.R. No. 135886, August 16, 1999, 312 SCRA 447. The Court held that in order to justify the
cancellation of the certificate of candidacy under Section 78 of the Omnibus Election Code, it is
essential that: (1) the false representation mentioned therein pertains to a material matter on the
contents of the certificate of candidacy as provided in Section 74 (or the qualification for elective
office as provided in the Constitution); and (2) the false representation must consist of a deliberate
attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible.

9 Section 78 of the OEC reads:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy.—A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided, after notice and hearing, not later than fifteen days before the election.

10 Section 74 of the OEC pertains to the contents of a certificate of candidacy:

Sec. 74. Contents of certificate of candidacy. - The certificate of candidacy shall state that
the person filing it is announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the province, including its
component cities, highly urbanized city or district or sector which he seeks to represent; the
political party to which he belongs; civil status; his date of birth; residence; his post office
address for all election purposes; his profession or occupation; that he will support and
defend the Constitution of the Philippines and will maintain true faith and allegiance thereto;
that he will obey the laws, legal orders, and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a foreign country; that the
obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose
 of evasion; and that the facts stated in the certificate of candidacy are true to the best of his
knowledge.

Unless a candidate has officially changed his name through a court approved proceeding, a
candidate shall use in a certificate of candidacy the name by which he has been baptized, or
if has not been baptized in any church or religion, the name registered in the office of the
local civil registrar or any other name allowed under the provisions of existing law or, in the
case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage:
Provided, That when there are two or more candidates for an office with the same name and
surname, each candidate, upon being made aware of such fact, shall state his paternal and
maternal surname, except the incumbent who may continue to use the name and surname
stated in his certificate of candidacy when he was elected. He may also include one
nickname or stage name by which he is generally or popularly known in the locality. The
person filing a certificate of candidacy shall also affix his latest photograph, passport size; a
statement in duplicate containing his bio-data and program of government not exceeding one
hundred words, if he so desires.

11 Batas Pambansa Blg. 881, approved on December 3, 1985.

12 Section 68 of OEC provides:

SEC. 68. Disqualifications.—Any candidate who, in an action or protest in which he is a party

is declared by final decision of a competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to influence, induce or corrupt the
voters or public officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is
a permanent resident of or an immigrant to a foreign country shall not be qualified to
run for any elective office under this Code, unless said person has waived his status as a
permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws.

13
Section 1, Rule 25, 1993 COMELEC Rules of Procedure reads:

SEC. 1. Grounds for Disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or who
commits any act declared by law to be grounds for disqualification may be disqualified from
continuing as a candidate.

14 Approved on February 15, 1993.

15 Section 5, paragraph C (3.a), COMELEC Resolution No. 7800 states:

3.a. Disqualification under existing election laws.

(a) For not being a citizen of the Philippines;

(b) For being a permanent resident of or an immigrant to a foreign country;

 (c) For lack of the required age;

(d) For lack of residence;

(e) For not being a registered voter;

(f) For not being able to read and write;

(g) In case of a party-list nominee, for not being a bona fide member of the party or
organization which he seeks to represent for at least ninety (90) days immediately preceding
the day of the election.

16Entitled "Rules Delegating to the COMELEC Officials the Authority to Hear and Receive Evidence
in Disqualification Cases filed in connection with the May 14, 2007 National and Local Elections"
dated January 5, 2007.

17 Entitled Napoleon Camero, Petitioner, versus Jocelyn S. Limkaichong, Respondent.

18 Entitled Renald F. Villando, Petitioner, versus Jocelyn S. Limkaichong, Respondent.

19 Rollo (G.R. Nos. 178831-32), p. 152.

20 Rollo (G.R. Nos. 179132-33), p. 103.

21 Id. at 135-141.

22Rollo (G.R. Nos. 178831-32), pp. 24-35. The per curiam Joint Resolution was unanimously signed
by Commissioners Florentino A. Tuason, Jr. (ret.), Rene V. Sarmiento and Nicodemo T. Ferrer.

23 Id. at 30-35. (Emphasis ours).

24 Rollo (G.R. Nos. 179132-33), pp. 168-169, 201.

25Rollo (G.R. Nos. 178831-32), pp. 145-146. The resolution is entitled "In the Matter of Adopting the
Following Policy-Guidelines on: 1) the Proclamation of Winning Candidates with Pending
Disqualification Cases; 2) Suspension of Canvassing and/or Proclamation; and 3) Transfer of
Canvassing Venue," the pertinent portion of which is quoted as follows:

The Commission, in upholding the sovereign will of the people and in the interest of justice
and fair play, RESOLVED as it hereby RESOLVES, to adopt the following policy-guidelines
in connection with the May 14, 2007 National and Local Elections:

1. No suspension of proclamation of winning candidates with pending disqualification cases

There shall be no suspension of proclamation of winning candidates with pending

disqualification cases before or after elections, involving issues of citizenship, non-residency,
not being a registered voter, nuisance candidate, and/or violation of the election laws under
Section 68 of the Omnibus Election Code, Fair Elections Act and other related election laws.
 This policy however shall be without prejudice to the continuation of the hearing and
resolution of the involved cases.

26 Rollo (G.R. No. 179132-33), pp. 37-52

27 Id. at 147-149.

28 Rollo (G.R. Nos. 179132-33), pp. 158-162.

29 Rollo (G.R. Nos. 178831-32), p. 152.

30 Rollo (G.R. No. 179132-33), pp. 165-192.

31Id at 328-334. The Resolution was penned by the late Commissioner Romeo A. Brawner and
concurred in by Commissioner Resurreccion Z. Borra (ret.).

32Id. at 215-236. The COMELEC First Division denied Paras’ motion on January 28, 2008 through
an Omnibus Order. (Rollo [G.R. Nos. 178831-32], pp. 463-467.)

33Rollo (G.R. Nos. 178831-32), pp. 53-66. In the per curiam Resolution, then COMELEC Chairman
Benjamin A. Abalos, Sr., Commissioners Rene V. Sarmiento and Nicodemo T. Ferrer voted for the
denial of Limkaichong’s motion. The late Commissioner Romeo A. Brawner (also a former Presiding
Justice of the Court of Appeals) wrote a dissenting opinion, which was concurred with by retired
Commissioners Resurreccion Z. Borra and Florentino A. Tuason, Jr., to the effect that Limkaichong’s
motion should be dismissed by the COMELEC for lack of jurisdiction.

34 Id. at 61-63. (Emphasis ours).

35 Id. at 159-163.

36 Section 6, Rule 18, COMELEC Rules of Procedure provides:

SEC. 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is equally
divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if
on rehearing no decision is reached, the action or proceeding shall be dismissed if originally
commenced in the Commission; in appealed cases, the judgment or order appealed from
shall stand affirmed; and in all incidental matters, the petition or motion shall be denied.

37 Rollo (G.R. Nos. 179132-33), pp. 213-214.

38 Id. at 238-256.

39Rollo (G.R. Nos. 178831-32), pp. 166-171. On July 5, 2007, Limkaichong filed an Urgent Motion to
Resolve the Manifestation and Motion for Clarification. On July 11, 2007, she filed a Second Motion
to Resolve said manifestation and motion.

40 Id. at 3-20.

41 Id. at 181-183.
42 Rollo (G.R. No. 179120), pp. 3-21.

43 Id. at 19-20.

44 Rollo (G.R. Nos. 179132-33), pp. 3-70.

45 Id. at 69-70.

46 Rollo (G.R. Nos. 178831-32), pp. 468-470.

47 Id. at 471-481.

48 Rollo (G.R. Nos. 179240-41), pp. 3-28.

49 Supra note 41.

50 COMELEC Rules of Procedure, Rule 19, Sec. 2.

51 442 Phil. 139 (2002).

52 Section 17, Article VI, 1987 Constitution provides:

Sec. 17. The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective members. Each Electoral Tribunal shall be composed of
nine members, three of whom shall be Justices of the Supreme Court to be designated by
the Chief Justice, and the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or organizations registered under the
party-list system represented therein. The senior justice in the Electoral Tribunal shall be its
Chairman.

53 Section 2(2), Article IX-C, 1987 Constitution provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

xxxx

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns,
and qualifications of all elective, regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial courts of limited
jurisdiction. Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay offices shall be final, executory, and not
appealable.

Section 6, RA 6646, otherwise known as "An Act Introducing Additional Reforms in the Electoral
54

System and for other Purposes," states:

 SEC. 6. Effect of Disqualification Case. - Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence
of guilt is strong.

55 Section 241 of the OEC provides:

SEC. 241. Definition. - A pre-proclamation controversy refers to any question pertaining to or

affecting the proceedings of the board of canvassers which may be raised by any candidate
or by any registered political party or coalition of political parties before the board or directly
with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation
to the preparation, transmission, receipt, custody and appreciation of election returns.

56 Section 243 of the OEC provides:

SEC. 243. Issues that may be raised in pre-proclamation controversy. - The following shall
be proper issues that may be raised in pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers.

(b) The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other authentic
copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code.

(c) The election returns were prepared under duress, threats, coercion, or intimidation, or
they are obviously manufactured or not authentic; and

(d) When the substitute or fraudulent returns in controverted polling places were canvassed,
the results of which materially affected the standing of the aggrieved candidate or
candidates.

57Villarosa v. Commission on Elections and Atty. Dan Restor, 377 Phil. 497, 506 (1999), citing the
Concurring Opinion of Justice Antonio in University of Nueva Caceres v. Martinez, 56 SCRA 148
(1974).

58 Id. at 507, citing Midland Insurance Corporation, 143 SCRA 458 (1986).

59 Section 3, Article IX-C, 1987 Constitution provides:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases, including
pre-proclamation controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc.

60 G.R. No. 167594, March 10, 2006, 484 SCRA 529, 537.
61 Vinzons-Chato v. Commission on Elections, G.R. No. 172131, April 2, 2007, 520 SCRA 166, 179,
citing Aggabao v. Commission on Elections, 449 SCRA 400, 404-405 (2005); Guerrero v.
Commission on Elections, 391 Phil. 344, 352 (2000).

62SEC. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. - A
sworn petition contesting the election of any Member of the Batasang Pambansa or any regional,
provincial or city official shall be filed with the Commission by any candidate who has duly filed a
certificate of candidacy and has been voted for the same office, within ten days after the
proclamation of the results of the election.

63Vinzons-Chato v. Commission on Elections, supra note 61, at 178, citing Rasul v. Commission on
Elections, 371 Phil. 760, 766 (1999).

64 Lazatin v. Commission on Elections, G.R. No. L-80007, January 25, 1988, 157 SCRA 337, 338.

65 Supra note 61, at 180.

66 G.R. No. 105278, November 18, 1993, 228 SCRA 36, 44.

67 G.R. No. 87193, June 23, 1989, 174 SCRA 245. (Emphasis supplied)

68 G.R. Nos. L-25204 & L-25219, January 23, 1970, 31 SCRA 52, 58.

69 Rollo p. 97.

70 Id. at 172 and 175.

71Section 2. Mode of review. - A judgment or final order or resolution of the Commission on

Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme
Court on certiorari under Rule 65, except as hereinafter provided.

72 Soriano, Jr. v. Commission on Elections, G.R. Nos. 164496-505, April 2, 2007, 520 SCRA 80, 107,
citing Reyes v. RTC of Oriental Mindoro, 313 Phil. 727, 734 (1995).

73When Speaker Jose De Venecia, Jr. was replaced by Speaker Prospero Nograles, petitioner
Biraogo filed with the Court a Respectful Manifestation with Motion to Replace Respondent Jose De
Venecia, Jr. with Prospero C. Nograles, praying that the latter will replace the former as party-
respondent in G.R. No. 179120, which the Court granted in its Resolution dated April 1, 2008.

74 See Codilla v. De Venecia, 442 Phil. 139 (2002).

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

VELASCO, JR., J.:

With due respect to the ponente, I register my dissent in G.R. No. 178831-32:

COMELEC, on May 7, 2001, issued a Resolution No. 4116 which reads:

This pertains to the finality of the decisions or resolutions of the Commission en banc or division,
particularly on Special Actions (Disqualification Cases).

Special Action cases refer to the following:

(a)Petition to deny due course to a certificate of candidacy;

(b) Petition to declare a candidate as a nuisance candidate

(c)Petition to disqualify a candidate; and

(d) Petition to postpone or suspend as election.

Considering the foregoing and in order to guide field officials on the finality of decisions or
resolutions on special action cases (disqualification cases) the Commission, RESOLVES as it is
hereby RESOLVED, as follows:

(1) the decision or resolution of the En Banc of the Commission on disqualification cases shall
become final and executory after five (5) from its promulgation unless restrained by the Supreme
Court.

The Commission En Banc Resolution affirming that of the Second Division was promulgated on
June 29, 2007. Petitioner received a copy of the resolution on July 3, 2007 and had until July 8, 2007
within which to obtain a restraining order from this Court to prevent the assailed resolution from
attaining finality. Instead of filing a petition before this Court with a prayer for a restraining order,
Limkaichong opted to file a Manifestation and Motion for Clarification before the COMELEC En
Banc. This procedural lapse is fatal as her motion with the COMELEC En Banc did not toll the
running of the five (5)-day reglementary period. Thus, the June 29, 2007 COMELEC En
BancResolution has become final and executory.

On the other hand, petitioner Limkaichong argues that the COMELEC was divested of jurisdiction
over the disqualification case when she was proclaimed by the Provincial Board of Canvassers on
May 25, 2007. She insists that jurisdiction is now exclusively vested in the HRET under Section 17,
Article VI of the 1987 Constitution, which provides:

The Senate and the House of Representatives shall each have an Electoral tribunal which shall be
the sole judge of all contests relating to the election, returns, and qualifications of their respective
Members. x x x

This posture will not also prevent the June 29, 2007 Resolution of the COMELEC En Banc from
becoming final and executory. When petitioner received a copy of the assailed resolution, she
should have instituted an action before the HRET to challenge the legality of the said resolution
affirming her disqualification.

This, she failed to do.

On August 16, 2007, the COMELEC En Banc ruled on Limkaichong’s manifestation and motion for
clarification, thus:

In view of the proclamation of Limkaichong and her subsequent assumption of office on June
30, 2007, this Commission rules that all pending incidents relating to the qualifications of
Limkaichong should now be determined by the House of Representatives Electoral
Tribunal in accordance with the above-quoted provision of the Constitutuion.

WHEREFORE, premises considered, this Commission resolved, as it hereby resolves, that all
pending incidents relating to the qualifications of Jocelyn S. Limkaichong as Member of the House of
Representatives should now be determined by the House of Representatives Electoral tribunal.

SO ORDERED. (Emphasis ours)

Despite the clear direction from the COMELEC En Banc, petitioner again failed to institute the
necessary action before the HRET to contest the June 29, 2007 Resolution within ten (10) days from
receipt of the August 16, 2007 COMELEC Resolution. Around seven (7) months had lapsed from
promulgation of the August 16, 2007 ruling of the COMELEC and petitioner has not lifted a finger to
challenge the June 29, 2007 COMELEC En Banc Resolution in question. Plainly, said resolution has
become final and executory.

I vote to DISMISS Limkaichong’s petition in G.R. Nos. 178831-32.

PRESBITERO J. VELASCO, JR.

Associate Justice
G.R. No. 198742 August 10, 2012

TEODORA SOBEJANA-CONDON, Petitioner,

vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P.
PAGADUAN,Respondents.

SERENO,*

PERLAS-BERNABE, JJ *

DECISION

REYES, J.:

Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic
Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold any elective public
office.

The Case

At bar is a special civil action for certiorari1 under Rule 64 of the Rules of Court seeking to nullify
Resolution2 dated September 6, 2011 of the Commission on Elections (COMELEC) en banc in EAC
(AE) No. A-44-2010. The assailed resolution (a) reversed the Order3 dated November 30, 2010 of
COMELEC Second Division dismissing petitioner’s appeal; and (b) affirmed the consolidated
Decision4 dated October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33,
declaring petitioner Teodora Sobejana-Condon (petitioner) disqualified and ineligible to her position
as Vice-Mayor of Caba, La Union.

The Undisputed Facts

The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8,
1944. On December 13, 1984, she became a naturalized Australian citizen owing to her marriage to
a certain Kevin Thomas Condon.

On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the
Philippine Embassy in Canberra, Australia pursuant to Section 3 of R.A. No. 9225 otherwise known
as the "Citizenship Retention and Re-Acquisition Act of 2003."5 The application was approved and
the petitioner took her oath of allegiance to the Republic of the Philippines on December 5, 2005.

On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian
Citizenship before the Department of Immigration and Indigenous Affairs, Canberra, Australia, which
in turn issued the Order dated September 27, 2006 certifying that she has ceased to be an
Australian citizen.6

The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in
her bid. She again sought elective office during the May 10, 2010 elections this time for the position
of Vice-Mayor. She obtained the highest numbers of votes and was proclaimed as the winning
candidate. She took her oath of office on May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan7 and Luis M.
Bautista,8 (private respondents) all registered voters of Caba, La Union, filed separate petitions for
quo warranto questioning the petitioner’s eligibility before the RTC. The petitions similarly sought the
petitioner’s disqualification from holding her elective post on the ground that she is a dual citizen and
that she failed to execute a "personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath" as imposed by Section 5(2) of R.A. No.
9225.

The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to
be an Australian citizen. She claimed that the Declaration of Renunciation of Australian Citizenship
she executed in Australia sufficiently complied with Section 5(2), R.A. No. 9225 and that her act of
running for public office is a clear abandonment of her Australian citizenship.

Ruling of the RTC

In its consolidated Decision dated October 22, 2010, the trial court held that the petitioner’s failure to
comply with Section 5(2) of R.A. No. 9225 rendered her ineligible to run and hold public office. As
admitted by the petitioner herself during trial, the personal declaration of renunciation she filed in
Australia was not under oath. The law clearly mandates that the document containing the
renunciation of foreign citizenship must be sworn before any public officer authorized to administer
oath. Consequently, the RTC’s decision disposed as follows:

WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents]
and AGAINST (petitioner):

1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the

office of Vice-Mayor of Caba, La Union;

2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; and

3) DECLARING the position of Vice-Mayor in said municipality vacant.

SO ORDERED.9

Ruling of the COMELEC

The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in
its Order10 dated November 30, 2010 for failure to pay the docket fees within the prescribed period.
On motion for reconsideration, the appeal was reinstated by the COMELEC en banc in its
Resolution11 dated September 6, 2011. In the same issuance, the substantive merits of the appeal
were given due course. The COMELEC en banc concurred with the findings and conclusions of the
RTC; it also granted the Motion for Execution Pending Appeal filed by the private respondents.

The decretal portion of the resolution reads:

WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as

follows:

1. To DISMISS the instant appeal for lack of merit;

2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and
3. To GRANT the Motion for Execution filed on November 12, 2010.

SO ORDERED.12 (Emphasis supplied)

Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc.

The Petitioner’s Arguments

The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006,
she no longer held dual citizenship and was only a Filipino citizen when she filed her certificate of
candidacy as early as the 2007 elections. Hence, the "personal and sworn renunciation of foreign
citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking elective office does
not apply to her.

She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In
support thereof, she cites portions of the Journal of the House of Representatives dated June 2 to 5,
2003 containing the sponsorship speech for House Bill (H.B.) No. 4720, the precursor of R.A. No.
9225.

She claims that the private respondents are estopped from questioning her eligibility since they
failed to do so when she filed certificates of candidacy for the 2007 and 2010 elections.

Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive
merits of her appeal instead of remanding the same to the COMELEC Second Division for the
continuation of the appeal proceedings; and (b) allow the execution pending appeal of the RTC’s
judgment.

The Issues

Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the
merits of an appeal after ruling on its reinstatement; II) Whether the COMELEC en banc may order
the execution of a judgment rendered by a trial court in an election case; III) Whether the private
respondents are barred from questioning the qualifications of the petitioner; and IV) For purposes of
determining the petitioner’s eligibility to run for public office, whether the "sworn renunciation of
foreign citizenship" in Section 5(2) of R.A. No. 9225 is a mere pro-forma requirement.

The Court’s Ruling

I. An appeal may be simultaneously

reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.

The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC
en banc by Section 3, Article IX-C of the Constitution, viz:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in division, provided that motions
for reconsideration of decisions shall be decided by the Commission en banc.
A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure,
to wit:

Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the
Commission en banc except motions on interlocutory orders of the division which shall be resolved
by the division which issued the order.

Considering that the above cited provisos do not set any limits to the COMELEC en banc’s
prerogative in resolving a motion for reconsideration, there is nothing to prevent the body from
directly adjudicating the substantive merits of an appeal after ruling for its reinstatement instead of
remanding the same to the division that initially dismissed it.

We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en
banc when it proceeded to decide the substantive merits of the petitioner’s appeal after ruling for its
reinstatement.

Further, records show that, in her motion for reconsideration before the COMELEC en banc, the
petitioner not only proffered arguments on the issue on docket fees but also on the issue of her
eligibility. She even filed a supplemental motion for reconsideration attaching therewith supporting
documents13 to her contention that she is no longer an Australian citizen. The petitioner, after
obtaining an unfavorable decision, cannot be permitted to disavow the en banc’s exercise of
discretion on the substantial merits of her appeal when she herself invoked the same in the first
place.

The fact that the COMELEC en banc had remanded similar appeals to the Division that initially
dismissed them cannot serve as a precedent to the disposition of the petitioner’s appeal. A decision
or resolution of any adjudicating body can be disposed in several ways. To sustain petitioner’s
argument would be virtually putting a straightjacket on the COMELEC en banc’s adjudicatory
powers.

More significantly, the remand of the appeal to the COMELEC Second Division would be
unnecessarily circuitous and repugnant to the rule on preferential disposition of quo warranto cases
espoused in Rule 36, Section 15 of the COMELEC Rules of Procedure.14

II. The COMELEC en banc has the

power to order discretionary
execution of judgment.

We cannot subscribe to petitioner’s submission that the COMELEC en banc has no power to order
the issuance of a writ of execution and that such function belongs only to the court of origin.

There is no reason to dispute the COMELEC’s authority to order discretionary execution of judgment
in view of the fact that the suppletory application of the Rules of Court is expressly sanctioned by
Section 1, Rule 41 of the COMELEC Rules of Procedure.15

Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an
appellate court after the trial court has lost jurisdiction. In Batul v. Bayron,16 we stressed the import of
the provision vis-à-vis election cases when we held that judgments in election cases which may be
executed pending appeal includes those decided by trial courts and those rendered by the
COMELEC whether in the exercise of its original or appellate jurisdiction.
III. Private respondents are not
estopped from questioning
petitioner’s eligibility to hold public
office.

The fact that the petitioner’s qualifications were not questioned when she filed certificates of
candidacy for 2007 and 2010 elections cannot operate as an estoppel to the petition for quo
warranto before the RTC.

Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a
petition questioning the qualifications of a registered candidate to run for the office for which his
certificate of candidacy was filed can be raised, to wit:

(1) Before election, pursuant to Section 78 thereof which provides that:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. – A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election; and

(2) After election, pursuant to Section 253 thereof, viz:

Sec. 253. Petition for quo warranto. – Any voter contesting the election of any Member of the
Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty
to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission
within ten days after the proclamation of the results of the election. (Emphasis ours)

Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition
within the twenty-five (25)-day period prescribed by Section 78 of the Omnibus Election Code for
whatever reasons, the elections laws do not leave him completely helpless as he has another
chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten
(10) days from the proclamation of the results of the election, as provided under Section 253 of the
Omnibus Election Code.17

The above remedies were both available to the private respondents and their failure to utilize
Section 78 of the Omnibus Election Code cannot serve to bar them should they opt to file, as they
did so file, a quo warranto petition under Section 253.

IV. Petitioner is disqualified from

running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.

R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens
who have lost their Philippine citizenship18 by taking an oath of allegiance to the Republic, thus:

Section 3. Retention of Philippine Citizenship. – Any provision of law to the contrary notwithstanding,
natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of allegiance to the Republic:

"I, _____________________, solemnly swear (or affirm) that I will support and
defend the Constitution of the Republic of the Philippines and obey the laws and
legal orders promulgated by the duly constituted authorities of the Philippines; and I
hereby declare that I recognize and accept the supreme authority of the Philippines
and will maintain true faith and allegiance thereto; and that I imposed this obligation
upon myself voluntarily without mental reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a
foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.

The oath is an abbreviated repatriation process that restores one’s Filipino citizenship and all civil
and political rights and obligations concomitant therewith, subject to certain conditions imposed in
Section 5, viz:

Sec. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:

(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1,
Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such
public office as required by the Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the
Republic of the Philippines and its duly constituted authorities prior to their assumption of office:
Provided, That they renounce their oath of allegiance to the country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper authority
for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be
exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are naturalized
citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces of the
country which they are naturalized citizens. (Emphasis ours)

Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino
citizenship when she took an Oath of Allegiance to the Republic of the Philippines on December 5,
2005. At that point, she held dual citizenship, i.e., Australian and Philippine.
On September 18, 2006, or a year before she initially sought elective public office, she filed a
renunciation of Australian citizenship in Canberra, Australia. Admittedly, however, the same was not
under oath contrary to the exact mandate of Section 5(2) that the renunciation of foreign citizenship
must be sworn before an officer authorized to administer oath.

To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to
interpret the "sworn renunciation of any and all foreign citizenship" in Section 5(2) to be a mere pro
forma requirement in conformity with the intent of the Legislature. She anchors her submission on
the statement made by Representative Javier during the floor deliberations on H.B. No. 4720, the
precursor of R.A. No. 9225.

At the outset, it bears stressing that the Court’s duty to interpret the law according to its true intent is
exercised only when the law is ambiguous or of doubtful meaning. The first and fundamental duty of
the Court is to apply the law. As such, when the law is clear and free from any doubt, there is no
occasion for construction or interpretation; there is only room for application.19 Section 5(2) of R.A.
No. 9225 is one such instance.

Ambiguity is a condition of admitting two or more meanings, of being understood in more than one
way, or of referring to two or more things at the same time. For a statute to be considered
ambiguous, it must admit of two or more possible meanings.20

The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC,21 we declared its
categorical and single meaning: a Filipino American or any dual citizen cannot run for any elective
public position in the Philippines unless he or she personally swears to a renunciation of all foreign
citizenship at the time of filing the certificate of candidacy. We also expounded on the form of the
renunciation and held that to be valid, the renunciation must be contained in an affidavit duly
executed before an officer of the law who is authorized to administer an oath stating in clear and
unequivocal terms that affiant is renouncing all foreign citizenship.

The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos re-acquiring or
retaining their Philippine citizenship under R.A. No. 9225 must explicitly renounce their foreign
citizenship if they wish to run for elective posts in the Philippines, thus:

The law categorically requires persons seeking elective public office, who either retained their
Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any
and all foreign citizenship before a public officer authorized to administer an oath simultaneous with
or before the filing of the certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been
naturalized as citizens of a foreign country, but who reacquired or retained their Philippine
citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for
those seeking elective public offices in the Philippines, to additionally execute a personal and sworn
renunciation of any and all foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine
elections.

Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation
of any and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under
the said Act to accomplish an undertaking other than that which they have presumably complied with
under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made clear in
the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House Bill No.
4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225),
where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to
Hon. Representative Exequiel Javier that the oath of allegiance is different from the renunciation of
foreign citizenship;

xxxx

The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine
citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of the
Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for elective
posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have
one citizenship, namely, Philippine citizenship.23 (Citation omitted and italics and underlining ours)

Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to be disqualified from running

for the position of vice-mayor for his failure to make a personal and sworn renunciation of his
American citizenship.

We find no reason to depart from the mandatory nature infused by the above rulings to the phrase
"sworn renunciation". The language of the provision is plain and unambiguous. It expresses a single,
definite, and sensible meaning and must thus be read literally.25 The foreign citizenship must be
formally rejected through an affidavit duly sworn before an officer authorized to administer oath.

It is conclusively presumed to be the meaning that the Legislature has intended to convey.26 Even a
resort to the Journal of the House of Representatives invoked by the petitioner leads to the same
inference, viz:

INTERPELLATION OF REP. JAVIER

Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born
Filipinos and not to naturalized Filipinos.

Rep. Libanan replied in the affirmative.

Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos
who have dual citizenship shall continue to enjoy full civil and political rights. This being the case, he
sought clarification as to whether they can indeed run for public office provided that they renounce
their foreign citizenship.

Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal
and sworn renunciation of foreign citizenship before any authorized public officer.

Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full
civil and political rights as Filipino citizens, the measure also discriminates against them since they
are required to make a sworn renunciation of their other foreign citizenship if and when they run for
public office. He thereafter proposed to delete this particular provision.

In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any
issues that might be raised pertaining to the citizenship of any candidate. He subsequently
cited the case of Afroyim vs. Rusk, wherein the United States considered a naturalized
American still as an American citizen even when he cast his vote in Israel during one of its
elections.
Rep. Javier however pointed out that the matter of voting is different because in voting, one is not
required to renounce his foreign citizenship. He pointed out that under the Bill, Filipinos who run for
public office must renounce their foreign citizenship. He pointed out further that this is a contradiction
in the Bill.

Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and
are now entitled to reacquire their Filipino citizenship will be considered as natural-born citizens. As
such, he likewise inquired whether they will also be considered qualified to run for the highest
elective positions in the country.

Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn
renunciation of their foreign citizenship and that they comply with the residency and registration
requirements as provided for in the Constitution.

Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are
citizens at the time of birth without having to perform an act to complete or perfect his/her
citizenship.

Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No.
63. The repeal, he said, would help Filipino citizens who acquired foreign citizenship to retain their
citizenship. With regard then to Section 5 of the Bill, he explained that the Committee had decided to
include this provision because Section 18, Article XI of the Constitution provides for the
accountability of public officers.

In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign
citizenship will only become a pro forma requirement.

On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who
became foreign citizens and who have reacquired their Filipino citizenship under the Bill will be
considered as natural-born citizens, and therefore qualified to run for the presidency, the vice-
presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that a
natural-born citizen is one who is a citizen of the country at the time of birth. He also explained that
the Bill will, in effect, return to a Filipino citizen who has acquired foreign citizenship, the status of
being a natural-born citizen effective at the time he lost his Filipino citizenship.

As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino
citizens and Filipino citizens by election who are all disqualified to run for certain public offices. He
then suggested that the Bill be amended by not considering as natural-born citizens those Filipinos
who had renounced their Filipino citizenship and acquired foreign citizenship. He said that they
should be considered as repatriated citizens.

In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latter’s
comments on the matter. He however stressed that after a lengthy deliberation on the subject, the
Committees on Justice, and Foreign Affairs had decided to revert back to the status of being natural-
born citizens those natural-born Filipino citizens who had acquired foreign citizenship but now
wished to reacquire their Filipino citizenship.

Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage
to a foreigner can regain her repatriated Filipino citizenship, upon the death of her husband, by
simply taking her oath before the Department of Justice (DOJ).
Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens
who are not considered natural-born. He reiterated that natural-born Filipino citizens who had
renounced their citizenship by pledging allegiance to another sovereignty should not be allowed to
revert back to their status of being natural-born citizens once they decide to regain their Filipino
citizenship. He underscored that this will in a way allow such Filipinos to enjoy dual citizenship.

On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep.
Libanan stated that this will defeat the purpose of the Bill.

Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign
citizenships and later decided to regain their Filipino citizenship, will be considered as repatriated
citizens.

Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only
naturalized Filipino citizens are not considered as natural-born citizens.

In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino
citizens under the 1935 Constitution and who elected Filipino citizenship upon reaching the age of
maturity, are not deemed as natural-born citizens.

In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery
of one’s original nationality and only naturalized citizens are not considered as natural-born citizens.

On whether the Sponsors would agree to not giving back the status of being natural-born citizens to
natural-born Filipino citizens who acquired foreign citizenship, Rep. Libanan remarked that the Body
in plenary session will decide on the matter.27

The petitioner obviously espouses an isolated reading of Representative Javier’s statement; she
conveniently disregards the preceding and succeeding discussions in the records.

The above-quoted excerpts of the legislative record show that Representative Javier’s statement
ought to be understood within the context of the issue then being discussed, that is – whether former
natural-born citizens who re-acquire their Filipino citizenship under the proposed law will revert to
their original status as natural-born citizens and thus be qualified to run for government positions
reserved only to natural-born Filipinos, i.e. President, Vice-President and Members of the Congress.

It was Representative Javier’s position that they should be considered as repatriated Filipinos and
not as natural-born citizens since they will have to execute a personal and sworn renunciation of
foreign citizenship. Natural-born citizens are those who need not perform an act to perfect their
citizenship. Representative Libanan, however, maintained that they will revert to their original status
as natural-born citizens. To reconcile the renunciation imposed by Section 5(2) with the principle that
natural-born citizens are those who need not perform any act to perfect their citizenship,
Representative Javier suggested that the sworn renunciation of foreign citizenship be considered as
a mere pro forma requirement.

Petitioner’s argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must
be deemed a formal requirement only with respect to the re-acquisition of one’s status as a natural-
born Filipino so as to override the effect of the principle that natural-born citizens need not perform
any act to perfect their citizenship. Never was it mentioned or even alluded to that, as the petitioner
wants this Court to believe, those who re-acquire their Filipino citizenship and thereafter run for
public office has the option of executing an unsworn affidavit of renunciation.
It is also palpable in the above records that Section 5 was intended to complement Section 18,
Article XI of the Constitution on public officers’ primary accountability of allegiance and loyalty, which
provides:

Sec. 18. – Public officers and employees owe the State and this Constitution allegiance at all times
and any public officer or employee who seeks to change his citizenship or acquire the status of an
immigrant of another country during his tenure shall be dealt with by law.

An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing,

that one’s statement is true or that one will be bound to a promise. The person making the oath
implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect of an
oath is to subject the person to penalties for perjury if the testimony is false.28

Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to
the prospective public officer’s abandonment of his adopted state and promise of absolute allegiance
and loyalty to the Republic of the Philippines.

To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes;
it would also accommodate a mere qualified or temporary allegiance from government officers when
the Constitution and the legislature clearly demand otherwise.

Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed
to have lost her citizenship, is entitled to judicial notice. We disagree.

Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and
proven.29 To prove a foreign law, the party invoking it must present a copy thereof and comply with
Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads:

Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or
by a copy attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in a foreign country, the certificate may be made
by a secretary of the embassy or legation, consul general, consul, vice- consul, or consular agent or
by any officer in the foreign service of the Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office. (Emphasis ours)

Sec. 25. What attestation of copy must state. – Whenever a copy of a document or record is attested
for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under
the seal of such court.

The Court has admitted certain exceptions to the above rules and held that the existence of a foreign
law may also be established through: (1) a testimony under oath of an expert witness such as an
attorney-at-law in the country where the foreign law operates wherein he quotes verbatim a section
of the law and states that the same was in force at the time material to the facts at hand; and (2)
likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign
country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed
rule of practice, may be allowed and used as basis for favorable action, if, in the light of all the
circumstances, the Court is "satisfied of the authenticity of the written proof offered." Thus, in a
number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese
Consulate General of Manila was held to be a competent proof of that law.30

The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above
methods. As uniformly observed by the RTC and COMELEC, the petitioner failed to show proof of
the existence of the law during trial. Also, the letter issued by the Australian government showing
that petitioner already renounced her Australian citizenship was unauthenticated hence, the courts a
quo acted judiciously in disregarding the same.

We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the
said letter in view of the photocopy of a Certificate of Authentication issued by Consular Section of
the Philippine Embassy in Canberra, Australia attached to the petitioner’s motion for reconsideration.

We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied
Workers (AASJS) Member v. Datumanong31 that the framers of R.A. No. 9225 did not intend the law
to concern itself with the actual status of the other citizenship.

This Court as the government branch tasked to apply the enactments of the legislature must do so
conformably with the wisdom of the latter sans the interference of any foreign law. If we were to read
the Australian Citizen Act of 1948 into the application and operation of R.A. No. 9225, we would be
applying not what our legislative department has deemed wise to require. To do so would be a
brazen encroachment upon the sovereign will and power of the people of this Republic.32

The petitioner’s act of running for public office does not suffice to serve as an effective renunciation
of her Australian citizenship. While this Court has previously declared that the filing by a person with
dual citizenship of a certificate of candidacy is already considered a renunciation of foreign
citizenship,33 such ruling was already adjudged superseded by the enactment of R.A. No. 9225 on
August 29, 2003 which provides for the additional condition of a personal and sworn renunciation of
foreign citizenship.34

The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the
most number of votes does not validate the election of a disqualified candidate because the
application of the constitutional and statutory provisions on disqualification is not a matter of
popularity.35

In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship
and seek elective office, to execute a personal and sworn renunciation of any and all foreign
citizenships before an authorized public officer prior to or simultaneous to the filing of their
certificates of candidacy, to qualify as candidates in Philippine elections.36 The rule applies to all
those who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether
they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the right to run for
public office.

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens
who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores
their right to run for public office. The petitioner's failure to comply therewith in accordance with the
exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship
she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective
office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run
for and hold any elective office in the Philippines.
WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated
September 6, 2011 of the Commission on Elections en bane in EAC (AE) No. A-44-2010
is AFFIRMED in toto.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

(On Official Leave) (On Official Leave)

MARIA LOURDES P.A. SERENO ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296
The Judiciary Act of 1948, as amended)

Footnotes
* On Official Leave.

1
Rollo, pp. 3-54.

2
Id. at 59-72.

3
Id. at 74-75.

4
Under the sala of Judge Rose Mary R. Molina-Alim; id. at 76-86.

5
AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE
FOREIGN CITIZENSHIP PERMANENT. AMENDING FOR THE PURPOSE
COMMONWEALTH ACT NO. 63, AS AMENDED AND FOR OTHER PURPOSES. Enacted
August 29, 2003.

6
Rollo, p. 79.

7
Docketed as SPL. CV. ACTION CASE No. 78-BG.

8
Docketed as SPL. CV. ACTION CASE No. 76-BG.

9
Rollo, p. 86.

10
Id. at 74-75.

11
Id. at 59-72.

12
Id. at 67-68.

13
(1) Photocopy of a Letter addressed to the COMELEC dated November 10, 2010 issued by
the Department of Immigration and Citizenship of Australia, containing an advise that as of
September 27, 2006, the petitioner is no longer an Australian citizen; and (2) photocopy of a
Certificate of Authentication of the said letter dated November 23, 2010 issued by Grace
Anne G. Bulos of the Consular Section of the Philippine Embassy in Canberra, Australia. (Id.
at 62.)

Rule 36, Sec. 15. Preferential Disposition of Quo Warranto Cases. – The courts shall give
14

preference to quo warranto over all other cases, except those of habeas corpus.

"In the absence of any applicable provision in [said] Rules, the pertinent provisions of the
15

Rules of Court in the Philippines shall be applicable by analogy or in a suppletory character

and effect."

16
468 Phil. 130 (2004).

17
Salcedo II v. COMELEC, 371 Phil. 377, 389 (1999).

1) natural-born citizens who have lost their Philippine citizenship by reason of their
18

naturalization as citizens of a foreign country; and 2) natural-born citizens of the Philippines

who, after the effectivity of the law, become citizens of a foreign country.
19
Abello v. Commissioner of Internal Revenue, 492 Phil. 303, 309-310 (2005).

20
Id. at 310.

21
G.R. No. 182701, July 23, 2008, 559 SCRA 696.

22
G.R. No. 179848, November 29, 2008, 572 SCRA 295.

23
Id. at 306-308.

24
G.R. No. 180048, June 19, 2009, 590 SCRA 149.

Lokin, Jr. v. COMELEC, G.R. Nos. 179431-32 and 180443, June 22, 2010, 621 SCRA 385,
25

406.

26
Id.

27
JOURNAL OF THE HOUSE OF REPRESENTATIVES, June 2 to 5, 2003; rollo, pp. 94-95.

28
Black’s Law Dictionary, Eighth Ed., p. 1101.

29
Manufacturers Hanover Trust Co. v. Guerrero, 445 Phil. 770, 777 (2003).

30
Asiavest Limited v. CA, 357 Phil 536, 551-552 (1998), citing Jovito Salonga, Private
International Law, 101-102, 1995 ed..

31
G.R. No. 160869, May 11, 2007, 523 SCRA 108.

32
See Parado v. Republic of the Philippines, 86 Phil. 340, 344 (1950).

Valles v. COMELEC, 392 Phil. 327, 340 (2000); Mercado v. Manzano, 367 Phil. 132, 152-
33

153

(1999).

34
Jacot v. Dal, supra note 22, at 308.

35
Lopez v. COMELEC, supra note 21, at 701.

36
Jacot v. Dal, supra note 22, at 306.
G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.

x-----------------------x

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D.
VALDEZ Respondents.

DECISION

PEREZ, J.:

Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of
Court with extremely urgent application for an ex parte issuance of temporary
restraining order/status quo ante order and/or writ of preliminary injunction assailing the following: (1)
1 December 2015 Resolution of the Commission on Elections (COMELEC) Second Division; (2) 23
December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December
2015 Resolution of the COMELEC First Division; and ( 4) 23 December 2015 Resolution of the
COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for
having been issued without jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in
the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968.
Parental care and custody over petitioner was passed on by Edgardo to his relatives, Emiliano
Militar (Emiliano) and his wife. Three days after, 6 September 1968, Emiliano reported and
registered petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In
her Foundling Certificate and Certificate of Live Birth, the petitioner was given the name "Mary Grace
Natividad Contreras Militar." 1

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando
Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the
Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial court granted their petition
and ordered that petitioner's name be changed from "Mary Grace Natividad Contreras Militar" to
"Mary Grace Natividad Sonora Poe." Although necessary notations were made by OCR-Iloilo on
petitioner's foundling certificate reflecting the court decreed adoption,2 the petitioner's adoptive
mother discovered only sometime in the second half of 2005 that the lawyer who handled petitioner's
adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's
new name and the name of her adoptive parents. 3 Without delay, petitioner's mother executed an
affidavit attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006,
OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local
COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's
Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila.5

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F9272876 by the
Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed
her Philippine passport and respectively secured Philippine Passport Nos. L881511 and DD156616.7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the
Philippines8 but she opted to continue her studies abroad and left for the United States of America
(U.S.) in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts
where she earned her Bachelor of Arts degree in Political Studies.9

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen
of both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous
of being with her husband who was then based in the U.S., the couple flew back to the U.S. two
days after the wedding ceremony or on 29 July 1991. 11

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April
1992.12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in
the Philippines on 10 July 1998 and 5 June 2004, respectively. 13

On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S.
Passport No. 017037793 on 19 December 2001. 15

On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her
father's candidacy for President in the May 2004 elections. It was during this time that she gave birth
to her youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16

After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines
upon learning of her father's deteriorating medical condition. 17 Her father slipped into a coma and
eventually expired. The petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his estate.18

According to the petitioner, the untimely demise of her father was a severe blow to her entire family.
In her earnest desire to be with her grieving mother, the petitioner and her husband decided to move
and reside permanently in the Philippines sometime in the first quarter of 2005.19 The couple began
preparing for their resettlement including notification of their children's schools that they will be
transferring to Philippine schools for the next semester;20coordination with property movers for the
relocation of their household goods, furniture and cars from the U.S. to the Philippines;21 and inquiry
with Philippine authorities as to the proper procedure to be followed in bringing their pet dog into the
country.22 As early as 2004, the petitioner already quit her job in the U.S.23

Finally, petitioner came home to the Philippines on 24 May 200524 and without delay, secured a Tax
Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately
followed25 while her husband was forced to stay in the U.S. to complete pending projects as well as
to arrange the sale of their family home there.26

The petitioner and her children briefly stayed at her mother's place until she and her husband
purchased a condominium unit with a parking slot at One Wilson Place Condominium in San Juan
City in the second half of 2005.27 The corresponding Condominium Certificates of Title covering the
unit and parking slot were issued by the Register of Deeds of San Juan City to petitioner and her
husband on 20 February 2006.28 Meanwhile, her children of school age began attending Philippine
private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some
of the family's remaining household belongings.29 She travelled back to the Philippines on 11 March
2006.30

In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's
change and abandonment of their address in the U.S.31 The family home was eventually sold on 27
April 2006.32 Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the
country on 4 May 2006 and started working for a major Philippine company in July 2006.33

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills,
Quezon City where they built their family home34 and to this day, is where the couple and their
children have been residing.35 A Transfer Certificate of Title covering said property was issued in the
couple's name by the Register of Deeds of Quezon City on 1June 2006.

On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003.36 Under
the same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her three minor children on
10 July 2006.37 As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's
petitions and declared that she is deemed to have reacquired her Philippine citizenship while her
children are considered as citizens of the Philippines.38 Consequently, the BI issued Identification
Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August
2006.40 She also secured from the DFA a new Philippine Passport bearing the No. XX4731999.41 This
passport was renewed on 18 March 2014 and she was issued Philippine Passport No. EC0588861
by the DFA.42

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the
Movie and Television Review and Classification Board (MTRCB).43 Before assuming her post,
petitioner executed an "Affidavit of Renunciation of Allegiance to the United States of America and
Renunciation of American Citizenship" before a notary public in Pasig City on 20 October 2010,44 in
satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225.45 The following day, 21
October 2010 petitioner submitted the said affidavit to the BI46 and took her oath of office as
Chairperson of the MTRCB.47 From then on, petitioner stopped using her American passport.48

On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an
"Oath/Affirmation of Renunciation of Nationality of the United States."49 On that day, she
accomplished a sworn questionnaire before the U.S. Vice Consul wherein she stated that she had
taken her oath as MTRCB Chairperson on 21 October 2010 with the intent, among others, of
relinquishing her American citizenship.50 In the same questionnaire, the petitioner stated that she had
resided outside of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July 1991
and from May 2005 to present.51

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality
of the United States" effective 21 October 2010.52

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for
Senator for the 2013 Elections wherein she answered "6 years and 6 months" to the question
"Period of residence in the Philippines before May 13, 2013."53 Petitioner obtained the highest
number of votes and was proclaimed Senator on 16 May 2013. 54

On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her
COC, the petitioner declared that she is a natural-born citizen and that her residence in the
Philippines up to the day before 9 May 2016 would be ten (10) years and eleven (11) months
counted from 24 May 2005.57 The petitioner attached to her COC an "Affidavit Affirming Renunciation
of U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon City on 14 October
2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several
COMELEC cases against her which were the subject of these consolidated cases.

Origin of Petition for Certiorari in G.R. No. 221697

A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to
deny due course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to
the COMELEC Second Division.59She is convinced that the COMELEC has jurisdiction over her
petition.60 Essentially, Elamparo's contention is that petitioner committed material misrepresentation
when she stated in her COC that she is a natural-born Filipino citizen and that she is a resident of
the Philippines for at least ten (10) years and eleven (11) months up to the day before the 9 May
2016 Elections.61

On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born
Filipino on account of the fact that she was a foundling.62 Elamparo claimed that international law
does not confer natural-born status and Filipino citizenship on foundlings.63 Following this line of
reasoning, petitioner is not qualified to apply for reacquisition of Filipino citizenship under R.A. No.
9225 for she is not a natural-born Filipino citizen to begin with.64Even assuming arguendo that
petitioner was a natural-born Filipino, she is deemed to have lost that status when she became a
naturalized American citizen.65 According to Elamparo, natural-born citizenship must be continuous
from birth.66

On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn
declaration she made in her 2012 COC for Senator wherein she indicated that she had resided in
the country for only six ( 6) years and six ( 6) months as of May 2013 Elections. Elamparo likewise
insisted that assuming arguendo that petitioner is qualified to regain her natural-born status under
R.A. No. 9225, she still fell short of the ten-year residency requirement of the Constitution as her
residence could only be counted at the earliest from July 2006, when she reacquired Philippine
citizenship under the said Act. Also on the assumption that petitioner is qualified to reacquire lost
Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her domicile in the
Philippines.67

Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a
petition for quo warranto which could only be filed if Grace Poe wins in the Presidential
elections, and that the Department of Justice (DOJ) has primary jurisdiction to revoke the
BI's July 18, 2006 Order;
 (2) the petition failed to state a cause of action because it did not contain allegations which, if
hypothetically admitted, would make false the statement in her COC that she is a natural-
born Filipino citizen nor was there any allegation that there was a willful or deliberate intent to
misrepresent on her part;

(3) she did not make any material misrepresentation in the COC regarding her citizenship
and residency qualifications for:

a. the 1934 Constitutional Convention deliberations show that foundlings were

considered citizens;

b. foundlings are presumed under international law to have been born of citizens of
the place where they are found;

c. she reacquired her natural-born Philippine citizenship under the provisions of R.A.
No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to the filing of
her COC for President in the May 9, 2016 Elections and that the same is in full force
and effect and has not been withdrawn or recanted;

e. the burden was on Elamparo in proving that she did not possess natural-born
status;

f. residence is a matter of evidence and that she reestablished her domicile in the
Philippines as early as May 24, 2005;

g. she could reestablish residence even before she reacquired natural-born

citizenship under R.A. No. 9225;

h. statement regarding the period of residence in her 2012 COC for Senator was an
honest mistake, not binding and should give way to evidence on her true date of
reacquisition of domicile;

i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino
people to decide a purely political question, that is, should she serve as the country's
next leader.68

After the parties submitted their respective Memoranda, the petition was deemed submitted for
resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that
petitioner's COC, filed for the purpose of running for the President of the Republic of the Philippines
in the 9 May 2016 National and Local Elections, contained material representations which are false.
The fallo of the aforesaid Resolution reads:

WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course
to or Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy
for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed
by respondent Mary Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the
COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the same.70

Origin of Petition for Certiorari in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P.
Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which
were consolidated and raffled to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure,71 docketed
as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship
to qualify her for the Presidency.72

Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of
unknown parentage, particularly foundlings, cannot be considered natural-born Filipino citizens since
blood relationship is determinative of natural-born status.73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred that the fact that foundlings were not
expressly included in the categories of citizens in the 193 5 Constitution is indicative of the framers'
intent to exclude them.74 Therefore, the burden lies on petitioner to prove that she is a natural-born
citizen.75

Neither can petitioner seek refuge under international conventions or treaties to support her claim
that foundlings have a nationality.76 According to Tatad, international conventions and treaties are not
self-executory and that local legislations are necessary in order to give effect to treaty obligations
assumed by the Philippines.77 He also stressed that there is no standard state practice that
automatically confers natural-born status to foundlings.78

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire
Philippine citizenship under R.A. No. 9225 because it only applies to former natural-born citizens
and petitioner was not as she was a foundling.79

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10)
year residency requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only
from the time she renounced her American citizenship which was sometime in 2010 or
2011.81 Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as
evinced by the fact that her husband stayed thereat and her frequent trips to the U.S.82

In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No.
15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the
status of a natural-born citizen.83 He advanced the view that former natural-born citizens who are
repatriated under the said Act reacquires only their Philippine citizenship and will not revert to their
original status as natural-born citizens.84

He further argued that petitioner's own admission in her COC for Senator that she had only been a
resident of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013
Elections operates against her. Valdez rejected petitioner's claim that she could have validly
reestablished her domicile in the Philippines prior to her reacquisition of Philippine citizenship. In
effect, his position was that petitioner did not meet the ten (10) year residency requirement for
President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition,85 docketed as SPA
No. 15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for
President should be cancelled on the ground that she did not possess the ten-year period of
residency required for said candidacy and that she made false entry in her COC when she stated
that she is a legal resident of the Philippines for ten (10) years and eleven (11) months by 9 May
2016.86 Contreras contended that the reckoning period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date when her petition to reacquire Philippine
citizenship was approved by the BI.87 He asserted that petitioner's physical presence in the country
before 18 July 2006 could not be valid evidence of reacquisition of her Philippine domicile since she
was then living here as an American citizen and as such, she was governed by the Philippine
immigration laws.88

In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition
did not invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68 of
the Omnibus Election Code.89 Instead, Tatad completely relied on the alleged lack of residency and
natural-born status of petitioner which are not among the recognized grounds for the disqualification
of a candidate to an elective office.90

Second, the petitions filed against her are basically petitions for quo warranto as they focus on
establishing her ineligibility for the Presidency.91 A petition for quo warranto falls within the exclusive
jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC.92

Third, the burden to prove that she is not a natural-born Filipino citizen is on the
respondents.93 Otherwise stated, she has a presumption in her favor that she is a natural-born citizen
of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are
presumed to be citizens of the country where they are found.94 Consequently, the petitioner is
considered as a natural-born citizen of the Philippines.95

Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No.
9225 or the right to reacquire her natural-born status.96 Moreover, the official acts of the Philippine
Government enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the
BI declaring her as natural-born citizen, her appointment as MTRCB Chair and the issuance of the
decree of adoption of San Juan RTC.97 She believed that all these acts reinforced her position that
she is a natural-born citizen of the Philippines.98

Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her
domicile of choice in the Philippines as demonstrated by her children's resettlement and schooling in
the country, purchase of a condominium unit in San Juan City and the construction of their family
home in Corinthian Hills.99

Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even
before she renounced her American citizenship as long as the three determinants for a change of
domicile are complied with.100She reasoned out that there was no requirement that renunciation of
foreign citizenship is a prerequisite for the acquisition of a new domicile of choice.101

Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was
a mistake made in good faith.102

In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that
petitioner is not a natural-born citizen, that she failed to complete the ten (10) year residency
requirement, and that she committed material misrepresentation in her COC when she declared
therein that she has been a resident of the Philippines for a period of ten (10) years and eleven (11)
months as of the day of the elections on 9 May 2016. The COMELEC First Division concluded that
she is not qualified for the elective position of President of the Republic of the Philippines. The
dispositive portion of said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES,

to GRANT the Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.

Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's
Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution denying petitioner's
motion for reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of an ex parte temporary restraining order/status
quo ante order and/or writ of preliminary injunction. On 28 December 2015, temporary restraining
orders were issued by the Court enjoining the COMELEC and its representatives from implementing
the assailed COMELEC Resolutions until further orders from the Court. The Court also ordered the
consolidation of the two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter,
oral arguments were held in these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and
SET ASIDE the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-
001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent.

3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1

December 2015 Resolution of the Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11

December 2015 Resolution of the First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are tainted
with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED
CANDIDATE for President in the 9 May 2016 National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied due
course or cancelled "on the exclusive ground" that she made in the certificate a false material
representation. The exclusivity of the ground should hedge in the discretion of the COMELEC and
restrain it from going into the issue of the qualifications of the candidate for the position, if, as in this
case, such issue is yet undecided or undetermined by the proper authority. The COMELEC cannot
itself, in the same cancellation case, decide the qualification or lack thereof of the candidate.

We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C,
Section 2:

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay officials decided by
trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving

elective municipal and barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines,
for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible
elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions

which, in addition to other requirements, must present their platform or program of
government; and accredit citizens' arms of the Commission on Elections. Religious
denominations and sects shall not be registered. Those which seek to achieve their
goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be
refused registration.

Financial contributions from foreign governments and their agencies to political

parties, organizations, coalitions, or candidates related to elections constitute
interference in national affairs, and, when accepted, shall be an additional ground for
the cancellation of their registration with the Commission, in addition to other
penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases
of violations of election laws, including acts or omissions constituting election frauds,
offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending,

including limitation of places where propaganda materials shall be posted, and to
 prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or disregard
of, or disobedience to its directive, order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct
of each election, plebiscite, initiative, referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI,
Section 17 of the same basic law stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns, and qualifications of
their respective Members. Each Electoral Tribunal shall be composed of nine Members,
three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice,
and the remaining six shall be Members of the Senate or the House of Representatives, as
the case may be, who shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose.

The tribunals which have jurisdiction over the question of the qualifications of the President, the
Vice-President, Senators and the Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on

Elections,104 which was affirmatively cited in the En Banc decision in Fermin v. COMELEC105 is our
guide. The citation in Fermin reads:

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates,
the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 § 1, the
following:

Grounds for disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a
mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive
matter which the COMELEC, in the exercise of its rule-making power under Art. IX, A, §6 of the
Constitution, cannot do it. It is noteworthy that the Constitution withholds from the COMELEC even
the power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. [Art. IX, C, §2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but also in
their consequences are proceedings for "disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in §
12 and §68 of the Omnibus Election Code and in §40 of the Local Government Code and are for the
purpose of barring an individual from becoming a candidate or from continuing as a candidate for
public office. In a word, their purpose is to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed
in the Constitution or the statutes for holding public office and the purpose of the proceedings for
declaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply that
he is not disqualified from becoming a candidate or continuing as a candidate for a public office and
vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien
has the qualifications prescribed in §2 of the Law does not imply that he does not suffer from any of
[the] disqualifications provided in §4.

Before we get derailed by the distinction as to grounds and the consequences of the respective
proceedings, the importance of the opinion is in its statement that "the lack of provision for declaring
the ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza
lectured in Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized proceeding for
determining before election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast, whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be determined lest he wins because of the
very acts for which his disqualification is being sought. That is why it is provided that if the grounds
for disqualification are established, a candidate will not be voted for; if he has been voted for, the
votes in his favor will not be counted; and if for some reason he has been voted for and he has won,
either he will not be proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this
case, his domicile, may take a long time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending in the COMELEC even
after the elections of May 8, 1995. This is contrary to the summary character proceedings relating to
certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the position which they seek to fill, leaving the
determination of their qualifications to be made after the election and only in the event they are
elected. Only in cases involving charges of false representations made in certificates of candidacy is
the COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for
President, Vice President, Senators and members of the House of Representatives. (R.A. No. 7166,
§ 15) The purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal
and the other Tribunals as "sole judges" under the Constitution of the election,
returns and qualifications of members of Congress of the President and Vice President, as the case
may be.106

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to

the amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25.
This, the 15 February1993 version of Rule 25, which states that:

Grounds for disqualification. -Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from continuing as a candidate.107

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final
decision of a competent court, guilty of, or found by the Commission to be suffering from any
disqualification provided by law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate
of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof,
shall be summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized
proceeding for determining before election the qualifications of candidate. Such that, as presently
required, to disqualify a candidate there must be a declaration by a final judgment of a competent
court that the candidate sought to be disqualified "is guilty of or found by the Commission to be
suffering from any disqualification provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to
the other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for the
COMELEC to determine the qualification of a candidate. The facts of qualification must beforehand
be established in a prior proceeding before an authority properly vested with jurisdiction. The prior
determination of qualification may be by statute, by executive order or by a judgment of a competent
court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a
disqualification "provided by law or the Constitution," neither can the certificate of candidacy be
cancelled or denied due course on grounds of false representations regarding his or her
qualifications, without a prior authoritative finding that he or she is not qualified, such prior authority
being the necessary measure by which the falsity of the representation can be found. The only
exception that can be conceded are self-evident facts of unquestioned or unquestionable veracity
and judicial confessions. Such are, anyway, bases equivalent to prior decisions against which the
falsity of representation can be determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals
with, as in this case, alleged false representations regarding the candidate's citizenship and
residence, forced the COMELEC to rule essentially that since foundlings108 are not mentioned in the
enumeration of citizens under the 1935 Constitution,109 they then cannot be citizens. As the
COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said it all.
This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot
rule that herein petitioner possesses blood relationship with a Filipino citizen when "it is certain that
such relationship is indemonstrable," proceeded to say that "she now has the burden to present
evidence to prove her natural filiation with a Filipino parent."

The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown nor
unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity
and Filiation.110 That said, there is more than sufficient evider1ce that petitioner has Filipino parents
and is therefore a natural-born Filipino. Parenthetically, the burden of proof was on private
respondents to show that petitioner is not a Filipino citizen. The private respondents should have
shown that both of petitioner's parents were aliens. Her admission that she is a foundling did not shift
the burden to her because such status did not exclude the possibility that her parents were Filipinos,
especially as in this case where there is a high probability, if not certainty, that her parents are
Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but
whether such parents are Filipinos. Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to
induce belief in its existence or no-existence. Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability of improbability of the fact
in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA)111 that
from 1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the total
number of Filipinos born in the country was 10,558,278. The statistical probability that any child born
in the Philippines in that decade is natural-born Filipino was 99.83%. For her part, petitioner
presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there
were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the population were Filipinos.
In 1970, the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were
figures for the child producing ages (15-49). In 1960, there were 230,528 female Filipinos as against
730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino males and 886 male
aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female aliens,
or 99.56%. That same year, there were 245,740 Filipino males as against only 1,165 male aliens
or 99.53%. COMELEC did not dispute these figures. Notably, Commissioner Arthur Lim admitted,
during the oral arguments, that at the time petitioner was found in 1968, the majority of the
population in Iloilo was Filipino.112

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was
abandoned as an infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino
1âw phi 1

features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary course of
nature and the ordinary habits of life.113 All of the foregoing evidence, that a person with typical
Filipino features is abandoned in Catholic Church in a municipality where the population of the
Philippines is overwhelmingly Filipinos such that there would be more than a 99% chance that a
child born in the province would be a Filipino, would indicate more than ample probability if not
statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence on which
it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the
words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the Philippines so they
can get pregnant and leave their newborn babies behind. We do not face a situation where the
probability is such that every foundling would have a 50% chance of being a Filipino and a 50%
chance of being a foreigner. We need to frame our questions properly. What are the chances that
the parents of anyone born in the Philippines would be foreigners? Almost zero. What are the
chances that the parents of anyone born in the Philippines would be Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were
1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301 children in the
Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino children to
natural born Filipino children is 1:1357. This means that the statistical probability that any child born
in the Philippines would be a natural born Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total
number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino
children is 1:661. This means that the statistical probability that any child born in the Philippines on
that decade would be a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am
confident that the statistical probability that a child born in the Philippines would be a natural born
Filipino will not be affected by whether or not the parents are known. If at all, the likelihood that a
foundling would have a Filipino parent might even be higher than 99.9%. Filipinos abandon their
children out of poverty or perhaps, shame. We do not imagine foreigners abandoning their children
here in the Philippines thinking those infants would have better economic opportunities or believing
that this country is a tropical paradise suitable for raising abandoned children. I certainly doubt
whether a foreign couple has ever considered their child excess baggage that is best left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there may
be a theoretical chance that one among the thousands of these foundlings might be the child of not
just one, but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make
any sense. Given the statistical certainty - 99.9% - that any child born in the Philippines would be a
natural born citizen, a decision denying foundlings such status is effectively a denial of their
birthright. There is no reason why this Honorable Court should use an improbable hypothetical to
sacrifice the fundamental political rights of an entire class of human beings. Your Honor,
constitutional interpretation and the use of common sense are not separate disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's
enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude
foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings,
there is a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal
Revenue,114 this Court held that:

The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in constitutional construction is to
ascertain and thereafter assure the realization of the purpose of the framers and of the
people in the adoption of the Constitution. It may also be safely assumed that the people in
ratifying the Constitution were guided mainly by the explanation offered by the framers.115

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934
Constitutional Convention show that the framers intended foundlings to be covered by the
enumeration. The following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The
natural children of a foreign father and a Filipino mother not recognized by the father.

xxxx

President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman
refers to natural children or to any kind of illegitimate children?

Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or
illegitimate children of unknown parents.

Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino,
that is, I refer to the Spanish Code wherein all children of unknown parentage born in Spanish
territory are considered Spaniards, because the presumption is that a child of unknown parentage is
the son of a Spaniard. This may be applied in the Philippines in that a child of unknown parentage
born in the Philippines is deemed to be Filipino, and there is no need ...

Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of
unknown parentage."

Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not
unknown.

President:
Does the gentleman accept the amendment or not?

Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina
with a foreigner who does not recognize the child. Their parentage is not unknown and I think those
of overseas Filipino mother and father [whom the latter] does not recognize, should also be
considered as Filipinos.

President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr.
Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the
constitution need [not] refer to them. By international law the principle that children or people born in
a country of unknown parents are citizens in this nation is recognized, and it is not necessary to
include a provision on the subject exhaustively.116

Though the Rafols amendment was not carried out, it was not because there was any objection to
the notion that persons of "unknown parentage" are not citizens but only because their number was
not enough to merit specific mention. Such was the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:

During the debates on this provision, Delegate Rafols presented an amendment to include
as Filipino citizens the illegitimate children with a foreign father of a mother who was a citizen
of the Philippines, and also foundlings; but this amendment was defeated primarily because
the Convention believed that the cases, being too few to warrant the inclusion of a provision
in the Constitution to apply to them, should be governed by statutory legislation. Moreover, it
was believed that the rules of international law were already clear to the effect that
illegitimate children followed the citizenship of the mother, and that foundlings followed the
nationality of the place where they were found, thereby making unnecessary the inclusion in
the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral
Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the
proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the way to explain
the constitutional silence is by saying that it was the view of Montinola and Roxas which prevailed
that there is no more need to expressly declare foundlings as Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a
constitution can constitutionalize rules based on assumptions that are imperfect or even wrong. They
can even overturn existing rules. This is basic. What matters here is that Montinola and Roxas were
able to convince their colleagues in the convention that there is no more need to expressly declare
foundlings as Filipinos because they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the
avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos
under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the
1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as he was paraphrased by
Chief Justice Fernando: the constitution is not silently silent, it is silently vocal. 118

The Solicitor General makes the further point that the framers "worked to create a just and humane
society," that "they were reasonable patriots and that it would be unfair to impute upon them a
discriminatory intent against foundlings." He exhorts that, given the grave implications of the
argument that foundlings are not natural-born Filipinos, the Court must search the records of the
1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the status of
Filipinos. The burden is on those who wish to use the constitution to discriminate against foundlings
to show that the constitution really intended to take this path to the dark side and inflict this across
the board marginalization."
We find no such intent or language permitting discrimination against foundlings. On the contrary, all
three Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to
render social justice. Of special consideration are several provisions in the present charter: Article II,
Section 11 which provides that the "State values the dignity of every human person and guarantees
full respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest
priority to the enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities x x x" and Article XV, Section 3 which
requires the State to defend the "right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development." Certainly, these provisions contradict an intent to discriminate
against foundlings on account of their unfortunate status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in
the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which
provides that "[l]aws relating to family rights, duties, status, conditions, legal capacity of persons are
binding on citizens of the Philippines even though living abroad." Adoption deals with status, and a
Philippine adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v.
Republic,119 a child left by an unidentified mother was sought to be adopted by aliens. This Court
said:

In this connection, it should be noted that this is a proceedings in rem, which no court may entertain
unless it has jurisdiction, not only over the subject matter of the case and over the parties, but also
over the res, which is the personal status of Baby Rose as well as that of petitioners herein. Our Civil
Code (Art. 15) adheres to the theory that jurisdiction over the status of a natural person is
determined by the latter's nationality. Pursuant to this theory, we have jurisdiction over the status of
Baby Rose, she being a citizen of the Philippines, but not over the status of the petitioners, who are
foreigners.120 (Underlining supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern
the Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the
"Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and
Policies on the Adoption of Filipino Children and For Other Purposes" (otherwise known as the
Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all
expressly refer to "Filipino children" and include foundlings as among Filipino children who may be
adopted.

It has been argued that the process to determine that the child is a foundling leading to the issuance
of a foundling certificate under these laws and the issuance of said certificate are acts to acquire or
perfect Philippine citizenship which make the foundling a naturalized Filipino at best. This is
erroneous. Under Article IV, Section 2 "Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect their Philippine
citizenship." In the first place, "having to perform an act" means that the act must be personally done
by the citizen. In this instance, the determination of foundling status is done not by the child but by
the authorities.121 Secondly, the object of the process is the determination of the whereabouts of the
parents, not the citizenship of the child. Lastly, the process is certainly not analogous to
naturalization proceedings to acquire Philippine citizenship, or the election of such citizenship by one
born of an alien father and a Filipino mother under the 1935 Constitution, which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as
evidenced by a Foundling Certificate issued in her favor.122 The Decree of Adoption issued on 13
May 1974, which approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley
Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her "foundling parents," hence
effectively affirming petitioner's status as a foundling.123

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an
international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation.124 On the other hand,
generally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
Generally accepted principles of international law include international custom as evidence of a
general practice accepted as law, and general principles of law recognized by civilized
nations.125 International customary rules are accepted as binding as a result from the combination of
two elements: the established, widespread, and consistent practice on the part of States; and a
psychological element known as the opinionjuris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.126 "General principles of law recognized by civilized nations" are
principles "established by a process of reasoning" or judicial logic, based on principles which are
"basic to legal systems generally,"127 such as "general principles of equity, i.e., the general principles
of fairness and justice," and the "general principle against discrimination" which is embodied in the
"Universal Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination,
the Convention Against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation."128 These are the same core principles
which underlie the Philippine Constitution itself, as embodied in the due process and equal
protection clauses of the Bill of Rights.129

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the
generally accepted principles of international law and binding on the State.130 Article 15 thereof
states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of
the UNCRC imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name,
the right to acquire a nationality and as far as possible, the right to know and be cared for by his or
her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national
law and their obligations under the relevant international instruments in this field, in particular where
the child would otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights
(ICCPR). Article 24 thereof provide for the right of every child "to acquire a nationality:"

Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, the right, to such measures of protection as are required
by his status as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant
nationality from birth and ensure that no child is stateless. This grant of nationality must be at the
time of birth, and it cannot be accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the applicant to
be at least eighteen (18) years old.

The principles found in two conventions, while yet unratified by the Philippines, are generally
accepted principles of international law. The first is Article 14 of the 1930 Hague Convention on
Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is presumed
to have the "nationality of the country of birth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the
child's parentage is established, its nationality shall be determined by the rules applicable in cases
where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State
in which it was found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country where he is
found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of
Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary,
be considered to have been born within the territory of parents possessing the nationality of that
State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the
Reduction of Statelessness does not mean that their principles are not binding. While the Philippines
is not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human
Rights, Article 15(1) ofwhich131effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of
the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives effect" to
Article 15(1) of the UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not
signed or ratified the "International Convention for the Protection of All Persons from Enforced
Disappearance." Yet, we ruled that the proscription against enforced disappearances in the said
convention was nonetheless binding as a "generally accepted principle of international law." Razon
v. Tagitis is likewise notable for declaring the ban as a generally accepted principle of international
law although the convention had been ratified by only sixteen states and had not even come into
force and which needed the ratification of a minimum of twenty states. Additionally, as petitioner
points out, the Court was content with the practice of international and regional state organs,
regional state practice in Latin America, and State Practice in the United States.

Another case where the number of ratifying countries was not determinative is Mijares v.
Ranada, 134 where only four countries had "either ratified or acceded to"135 the 1966 "Convention on
the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters" when the
case was decided in 2005. The Court also pointed out that that nine member countries of the
European Common Market had acceded to the Judgments Convention. The Court also cited U.S.
laws and jurisprudence on recognition of foreign judgments. In all, only the practices of fourteen
countries were considered and yet, there was pronouncement that recognition of foreign judgments
was widespread practice.

Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted
principles of international law" are based not only on international custom, but also on "general
principles of law recognized by civilized nations," as the phrase is understood in Article 38.1
paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against discrimination, which
are fundamental principles underlying the Bill of Rights and which are "basic to legal systems
generally,"136 support the notion that the right against enforced disappearances and the recognition of
foreign judgments, were correctly considered as "generally accepted principles of international law"
under the incorporation clause.

Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and
Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those
countries follow the jus sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961
Convention on Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief
Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries
surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances, including the
practice of jus sanguinis countries, show that it is a generally accepted principle of international law
to presume foundlings as having been born of nationals of the country in which the foundling is
found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of
international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption,
expressly refer to "Filipino children." In all of them, foundlings are among the Filipino children who
could be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings.
Passports are by law, issued only to citizens. This shows that even the executive department, acting
through the DFA, considers foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our
Constitution. The presumption of natural-born citizenship of foundlings stems from the presumption
that their parents are nationals of the Philippines. As the empirical data provided by the PSA show,
that presumption is at more than 99% and is a virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality of
foundlings were designed to address the plight of a defenseless class which suffers from a
misfortune not of their own making. We cannot be restrictive as to their application if we are a
country which calls itself civilized and a member of the community of nations. The Solicitor General's
warning in his opening statement is relevant:

.... the total effect of those documents is to signify to this Honorable Court that those treaties and
conventions were drafted because the world community is concerned that the situation of foundlings
renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift foundlings a tool to deny them political
status or to accord them second-class citizenship.138

The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A.
No. 9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that
since the applicant must perform an act, what is reacquired is not "natural-born" citizenship but only
plain "Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation
statutes in general and of R.A. No. 9225 in particular.

In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine
citizenship, he will be restored to his former status as a natural-born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They
include Sobejana-Condon v. COMELEC141 where we described it as an "abbreviated repatriation
process that restores one's Filipino citizenship x x x." Also included is Parreno v. Commission on
Audit,142 which cited Tabasa v. Court of Appeals,143where we said that "[t]he repatriation of the former
Filipino will allow him to recover his natural-born citizenship. Parreno v. Commission on Audit144 is
categorical that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will
... recover his natural-born citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that
natural-born citizenship must begin at birth and remain uninterrupted and continuous from birth."
R.A. No. 9225 was obviously passed in line with Congress' sole prerogative to determine how
citizenship may be lost or reacquired. Congress saw it fit to decree that natural-born citizenship may
be reacquired even if it had been once lost. It is not for the COMELEC to disagree with the
Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already
rejected in Bengson III v. HRET145 where the phrase "from birth" was clarified to mean at the time of
birth: "A person who at the time of his birth, is a citizen of a particular country, is a natural-born
citizen thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship. In Bengson III
v. HRET, this Court pointed out that there are only two types of citizens under the 1987 Constitution:
natural-born citizen and naturalized, and that there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there are
only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino.
Noteworthy is the absence in said enumeration of a separate category for persons who, after losing
Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons for the loss of their
citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go through naturalization proceedings in order to
reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the
necessary qualifications to be elected as member of the House of Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we
may always revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied.
In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be prospective in application for the reason that
judicial decisions applying or interpreting the laws of the Constitution, until reversed, shall form part
of the legal system of the Philippines." This Court also said that "while the future may ultimately
uncover a doctrine's error, it should be, as a general rule, recognized as good law prior to its
abandonment. Consequently, the people's reliance thereupon should be respected."148

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood
when she put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the
names of her adoptive parents, and this misled the BI to presume that she was a natural-born
Filipino. It has been contended that the data required were the names of her biological parents which
are precisely unknown.

This position disregards one important fact - petitioner was legally adopted. One of the effects of
adoption is "to sever all legal ties between the biological parents and the adoptee, except when the
biological parent is the spouse of the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to
an amended birth certificate "attesting to the fact that the adoptee is the child of the adopter(s)" and
which certificate "shall not bear any notation that it is an amended issue."150 That law also requires
that "[a]ll records, books, and papers relating to the adoption cases in the files of the court, the
Department [of Social Welfare and Development], or any other agency or institution participating in
the adoption proceedings shall be kept strictly confidential."151 The law therefore allows petitioner to
state that her adoptive parents were her birth parents as that was what would be stated in her birth
certificate anyway. And given the policy of strict confidentiality of adoption records, petitioner was not
obligated to disclose that she was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same
case for cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The
whole process undertaken by COMELEC is wrapped in grave abuse of discretion.

On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner committed
false material representation when she stated in her COC that she has before and until 9 May 2016
been a resident of the Philippines for ten (10) years and eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the
day before the 2016 elections, is true.

The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines
before the day of the elections. Since the forthcoming elections will be held on 9 May 2016,
petitioner must have been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In
answer to the requested information of "Period of Residence in the Philippines up to the day before
May 09, 2016," she put in "10 years 11 months" which according to her pleadings in these cases
corresponds to a beginning date of 25 May 2005 when she returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the
Philippines. There are three requisites to acquire a new domicile: 1. Residence or bodily presence in
a new locality; 2. an intention to remain there; and 3. an intention to abandon the old domicile.152 To
successfully effect a change of domicile, one must demonstrate an actual removal or an actual
change of domicile; a bona fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with the purpose. In other words, there
must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or
at the domicile of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual.153

Petitioner presented voluminous evidence showing that she and her family abandoned their U.S.
domicile and relocated to the Philippines for good. These evidence include petitioner's former U.S.
passport showing her arrival on 24 May 2005 and her return to the Philippines every time she
travelled abroad; e-mail correspondences starting in March 2005 to September 2006 with a freight
company to arrange for the shipment of their household items weighing about 28,000 pounds to the
Philippines; e-mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to
the Philippines; school records of her children showing enrollment in Philippine schools starting June
2005 and for succeeding years; tax identification card for petitioner issued on July 2005; titles for
condominium and parking slot issued in February 2006 and their corresponding tax declarations
issued in April 2006; receipts dated 23 February 2005 from the Salvation Army in the U.S.
acknowledging donation of items from petitioner's family; March 2006 e-mail to the U.S. Postal
Service confirming request for change of address; final statement from the First American Title
Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up
questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of
petitioner on 24 May 2005 and that she and her family stayed with affiant until the condominium was
purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly decided to
relocate to the Philippines in 2005 and that he stayed behind in the U.S. only to finish some work
and to sell the family home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC,
particularly in its Resolution in the Tatad, Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely changed as
of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the
presence of the first two requisites, namely, physical presence and animus manendi, but maintained
there was no animus non-revertendi.154 The COMELEC disregarded the import of all the evidence
presented by petitioner on the basis of the position that the earliest date that petitioner could have
started residence in the Philippines was in July 2006 when her application under R.A. No. 9225 was
approved by the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v.
COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments, the private respondents
also added Reyes v. COMELEC.158 Respondents contend that these cases decree that the stay of an
alien former Filipino cannot be counted until he/she obtains a permanent resident visa or reacquires
Philippine citizenship, a visa-free entry under a balikbayan stamp being insufficient. Since petitioner
was still an American (without any resident visa) until her reacquisition of citizenship under R.A. No.
9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.

But as the petitioner pointed out, the facts in these four cases are very different from her situation.
In Coquilla v. COMELEC,159 the only evidence presented was a community tax certificate secured by
the candidate and his declaration that he would be running in the elections. Japzon v.
COMELEC160 did not involve a candidate who wanted to count residence prior to his reacquisition of
Philippine citizenship. With the Court decreeing that residence is distinct from citizenship, the issue
there was whether the candidate's acts after reacquisition sufficed to establish residence.
In Caballero v. COMELEC, 161 the candidate admitted that his place of work was abroad and that he
only visited during his frequent vacations. In Reyes v. COMELEC,162 the candidate was found to be
an American citizen who had not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only
proof she offered was a seven-month stint as provincial officer. The COMELEC, quoted with
approval by this Court, said that "such fact alone is not sufficient to prove her one-year residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the
respondents, the Court had no choice but to hold that residence could be counted only from
acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In contrast,
the evidence of petitioner is overwhelming and taken together leads to no other conclusion that she
decided to permanently abandon her U.S. residence (selling the house, taking the children from U.S.
schools, getting quotes from the freight company, notifying the U.S. Post Office of the abandonment
of their address in the U.S., donating excess items to the Salvation Army, her husband resigning
from U.S. employment right after selling the U.S. house) and permanently relocate to the Philippines
and actually re-established her residence here on 24 May 2005 (securing T.I.N, enrolling her
children in Philippine schools, buying property here, constructing a residence here, returning to the
Philippines after all trips abroad, her husband getting employed here). Indeed, coupled with her
eventual application to reacquire Philippine citizenship and her family's actual continuous stay in the
Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was for good.

In this connection, the COMELEC also took it against petitioner that she had entered the Philippines
visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An
Act Instituting a Balikbayan Program," shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one year. Included in the law is a former Filipino who has
been naturalized abroad and "comes or returns to the Philippines." 163 The law institutes
a balikbayan program "providing the opportunity to avail of the necessary training to enable
the balikbayan to become economically self-reliant members of society upon their return to the
country"164in line with the government's "reintegration program."165 Obviously, balikbayans are not
ordinary transients.

Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into
society, it would be an unduly harsh conclusion to say in absolute terms that the balikbayan must
leave after one year. That visa-free period is obviously granted him to allow him to re-establish his
life and reintegrate himself into the community before he attends to the necessary formal and legal
requirements of repatriation. And that is exactly what petitioner did - she reestablished life here by
enrolling her children and buying property while awaiting the return of her husband and then
applying for repatriation shortly thereafter.

No case similar to petitioner's, where the former Filipino's evidence of change in domicile is
extensive and overwhelming, has as yet been decided by the Court. Petitioner's evidence of
residence is unprecedented. There is no judicial precedent that comes close to the facts of
residence of petitioner. There is no indication in Coquilla v. COMELEC,166 and the other cases cited
by the respondents that the Court intended to have its rulings there apply to a situation where the
facts are different. Surely, the issue of residence has been decided particularly on the facts-of-the
case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC
ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in
her 2015 COC was false because she put six ( 6) years and six ( 6) months as "period of residence
before May 13, 2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she started
being a Philippine resident only in November 2006. In doing so, the COMELEC automatically
assumed as true the statement in the 2012 COC and the 2015 COC as false.

As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013
COC as the period of residence as of the day she submitted that COC in 2012. She said that she
reckoned residency from April-May 2006 which was the period when the U.S. house was sold and
her husband returned to the Philippines. In that regard, she was advised by her lawyers in 2015 that
residence could be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13
May 2013) as inquiring about residence as of the time she submitted the COC, is bolstered by the
change which the COMELEC itself introduced in the 2015 COC which is now "period of residence in
the Philippines up to the day before May 09, 2016." The COMELEC would not have revised the
query if it did not acknowledge that the first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house
and the return of her husband is plausible given the evidence that she had returned a year before.
Such evidence, to repeat, would include her passport and the school records of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and
conclusive admission against petitioner. It could be given in evidence against her, yes, but it was by
no means conclusive. There is precedent after all where a candidate's mistake as to period of
residence made in a COC was overcome by evidence. In Romualdez-Marcos v. COMELEC,167 the
candidate mistakenly put seven (7) months as her period of residence where the required period
was a minimum of one year. We said that "[i]t is the fact of residence, not a statement in a certificate
of candidacy which ought to be decisive in determining whether or not an individual has satisfied the
constitutions residency qualification requirement." The COMELEC ought to have looked at the
evidence presented and see if petitioner was telling the truth that she was in the Philippines from 24
May 2005. Had the COMELEC done its duty, it would have seen that the 2012 COC and the 2015
COC both correctly stated the pertinent period of residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually and
physically returned here on 24 May 2005 not because it was false, but only because COMELEC took
the position that domicile could be established only from petitioner's repatriation under R.A. No. 9225
in July 2006. However, it does not take away the fact that in reality, petitioner had returned from the
U.S. and was here to stay permanently, on 24 May 2005. When she claimed to have been a resident
for ten (10) years and eleven (11) months, she could do so in good faith.

For another, it could not be said that petitioner was attempting to hide anything. As already stated, a
petition for quo warranto had been filed against her with the SET as early as August 2015. The event
from which the COMELEC pegged the commencement of residence, petitioner's repatriation in July
2006 under R.A. No. 9225, was an established fact to repeat, for purposes of her senatorial
candidacy.

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC,
petitioner recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias
Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the issue
immediately, also in the press. Respondents have not disputed petitioner's evidence on this point.
From that time therefore when Rep. Tiangco discussed it in the media, the stated period of
residence in the 2012 COC and the circumstances that surrounded the statement were already
matters of public record and were not hidden.

Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo
warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that she made a
mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she misunderstood
the question and could have truthfully indicated a longer period. Her answer in the SET case was a
matter of public record. Therefore, when petitioner accomplished her COC for President on 15
October 2015, she could not be said to have been attempting to hide her erroneous statement in her
2012 COC for Senator which was expressly mentioned in her Verified Answer.

The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012
statement and have it covered by the 2015 representation. Petitioner, moreover, has on her side this
Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute
material misrepresentation which is the sole ground for denying due course to, and for the
cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation in his COC
must not only refer to a material fact (eligibility and qualifications for elective office), but should
evince a deliberate intent to mislead, misinform or hide a fact which would otherwise render a
candidate ineligible. It must be made with an intention to deceive the electorate as to one's
qualifications to run for public office.168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of
evidenced dates all of which can evince animus manendi to the Philippines and animus non
revertedi to the United States of America. The veracity of the events of coming and staying home
was as much as dismissed as inconsequential, the focus having been fixed at the petitioner's "sworn
declaration in her COC for Senator" which the COMELEC said "amounts to a declaration and
therefore an admission that her residence in the Philippines only commence sometime in November
2006"; such that "based on this declaration, [petitioner] fails to meet the residency requirement for
President." This conclusion, as already shown, ignores the standing jurisprudence that it is the fact
of residence, not the statement of the person that determines residence for purposes of compliance
with the constitutional requirement of residency for election as President. It ignores the easily
researched matter that cases on questions of residency have been decided favorably for the
candidate on the basis of facts of residence far less in number, weight and substance than that
presented by petitioner.169 It ignores, above all else, what we consider as a primary reason why
petitioner cannot be bound by her declaration in her COC for Senator which declaration was not
even considered by the SET as an issue against her eligibility for Senator. When petitioner made the
declaration in her COC for Senator that she has been a resident for a period of six (6) years and six
(6) months counted up to the 13 May 2013 Elections, she naturally had as reference the residency
requirements for election as Senator which was satisfied by her declared years of residence. It was
uncontested during the oral arguments before us that at the time the declaration for Senator was
made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and that the
general public was never made aware by petitioner, by word or action, that she would run for
President in 2016. Presidential candidacy has a length-of-residence different from that of a
senatorial candidacy. There are facts of residence other than that which was mentioned in the COC
for Senator. Such other facts of residence have never been proven to be false, and these, to repeat
include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the
USA to finish pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled
Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in
2005. Anika was enrolled in Learning Connection in San Juan in 2007, when she was already old
enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place
Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of their
family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who
handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a
new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents are
"Ronald Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of
the family's remaining household belongings. [Petitioner] returned to the Philippines on 11 March
1a\^ /phi1

2006.

In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's
abandonment of their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines
on 4 May 2006 and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they
eventually built their family home.170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under
the exclusive ground of false representation, to consider no other date than that mentioned by
petitioner in her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as
President of the Republic, the questioned Resolutions of the COMELEC in Division and En
Banc are, one and all, deadly diseased with grave abuse of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001
(DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent, stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016
National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is
hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated
cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139
(DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to

GRANT the petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution
of the Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to

DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is
AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015
Resolution of the First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and
Local Elections of 9 May 2016.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

See Concurring Opinion

MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion Please see Concurring Opinion

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

Please see Separate Dissenting Opinion See Dissenting opinion

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

I join J. Caguioa's Opinion

LUCAS P. BERSAMIN
DIOSDADO M. PERALTA
Associate Justice
Associate Justice

Pls. see Dissenting Opinion

JOSE CATRAL MENDOZA
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice

(I concur with the Dissenting Opinion of

See Dissenting Opinion
Justice Perlas-Bernabe)
ESTELA M. PERLAS-BERNABE
BIENVENIDO L. REYES
Associate Justice
Associate Justice
 See Separate Concurring Opinion See Concurring Opinion
MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA
Associate Justice Associate Justice

See Concurring Opinion

ALFREDO BENJAMIN S. CAGUIOA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

1
Petition for Certiorari in G.R. Nos. 221698-700, pp. 15-16; COMELEC First Division
Resolution dated 11 December 2015 in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and
SPA No. 15-139 (DC), p. 2.

2
Petition for Certiorari, id. at 16-17;

3
COMELEC First Division Resolution, supra note 1 at 4.

4
Petition for Certiorari, supra note 1 at 22.

5
Id. at 17; Comment (on the Petition for Certiorari in G.R. No. 221697) filed by respondent
COMELEC dated 11January 2016, p. 6.

6
Petition for Certiorari, id.; id. at 7.

7
Id. at 18.

8
Supra note 6.

9
Id.

10
COMELEC First Division Resolution, supra note 1 at 3.

11
Petition for Certiorari, supra note 1 at 17.

12
Id. at 18.
13
Id.

14
COMELEC First Division Resolution, supra note 10.

15
Id.

16
Supra note 1 at 17-18.

17
COMELEC First Division Resolution, supra note 10.

18
Id.

19
Id.

20
Petition for Certiorari, supra note 1 at 20.

21
Id.

22
Supra note 3.

23
Supra note 20.

24
Supra note 3.

25
Supra note 20.

26
Supra note 3.

27
Petition for Certiorari, supra note 4.

28
Id.

29
Id. at 23; COMELEC First Division Resolution, supra note 3.

30
Id.; id.

31
Id.; id.

32
Id.; id.

33
Id. at 23-24; COMELEC First Division Resolution, supra note 1 at 5.

34
Id. at 24; id.

35
Id.

36
Supra note 34.
37
Petition for Certiorari, supra note 1 at 25; COMELEC First Division Resolution, supra note
1 at 5.

38
Id. at 25-26; id.

39
Id. at 26; id.

40
Id.; id.

41
Id.; id.

42
Id. at 32; id. at 6.

43
Supra note 39.

Petition for Certiorari, supra note 1 at 26-27; COMELEC First Division Resolution, supra
44

note 1 at 5.

45
Section 5, R.A. No. 9225 states:

SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:

xx xx

3. Those appointed to any public office shall subscribe and swear to an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities prior
to their assumption of office: Provided, That they renounce their oath of allegiance to
the country where they took that oath;

xx xx

46
Petition for Certiorari, supra note 1 at 27.

47
Id. at 29.

48
Supra note 46; supra note 1 at 6.

49
Petition for Certiorari, supra note 1 at 30; id.

50
Id.

51
Supra note 48.

52
Petition for Certiorari, supra note 1 at 31; COMELEC First Division Resolution, supra note
1 at 6.

53
Comment, supra note 5 at 9.
54
Petition for Certiorari, supra note 1 at 31.

55
Id. at 32; Comment, supra note 53 at 10.

56
Id.; COMELEC First Division Resolution, supra note 1 at 6.

57
Id.; id. at 7.

58
Id.; id.

Comment (on the Petition in G.R. No. 221697) filed by respondent Elamparo, dated
59

January 6, 2016, p. 7.

60
COMELEC Second Division Resolution dated December 1, 2015 in SPA No. 15-001 (DC),
p. 7.

61
Id. at 7-8.

62
Supra note 60.

63
Id.

64
Id. at 8.

65
Id.

66
Petition for Certiorari in GR. No. 221697, p. 7.

67
Supra note 64.

Petition for Certiorari, supra note 65 at 8; COMELEC Second Division Resolution, supra
68

note 60 at 8-11.

69
COMELEC Second Division Resolution, supra note 60 at 34.

70
Comment, supra note 59 at 10.

71
Section 1 of Rule 25 of the COMELEC Rules of Procedure, as amended, states:

Rule 25 - Disqualification of Candidates

Section 1. Grounds. - Any candidate who, in an action or protest in which he is a

party, is declared by final decision of a competent court, guilty of, or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or

Cancel a Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance
Candidate, or a combination thereof, shall be summarily dismissed.
72
Petition to Disqualify dated 19 October 2015 filed by Tatad in SPA No. 15-002 (DC), p. 9.

73
Id., at 9 and 14.

74
Id. at 10.

75
Id. at 12.

76
Id. at 11.

77
COMELEC First Division Resolution, supra note 1 at 8.

78
Id.

79
Petition to Disqualify, supra note 72 at 11.

80
Id. at 21.

81
Id.

82
Id.

83
Supra note I at 8.

84
Id.

85
Contreras' petition is a petition for cancellation of Grace Poe's COC under Section 78 of
the Omnibus Election Code which states that:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A

verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by the person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The petition may be
filed at any time not later than twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election.

Petition for Cancellation of Grace Poe's COC dated 17 October 2015 filed by Contreras in
86

SPA No. 15-007 (DC), pp. 2-4.

87
Id. at 3; Petition for Certiorari, supra note l at 13.

88
Id. at 3-4.

89
Sections 12 and 68 of the Omnibus Election Code provide:

Sec. 12. Disqualifications. -Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving moral
 turpitude, shall be disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.

This disqualifications to be a candidate herein provided shall be deemed removed

upon the declaration by competent authority that said insanity or incompetence had
been removed or after the expiration of a period of five years from his service of
sentence, unless within the same period he again becomes disqualified.

Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is

a party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws.

90
COMELEC First Division Resolution, supra note 1 at 12.

91
Id. at 10.

92
Id.

93
Id. at 9.

94
Id.

95
Id.

96
Id.

97
Id.

98
Id.

99
Id.at 9-10.

100
Id.at 10.

101
Id.

102
Id.
 The 11 December 2015 Resolution of the COMELEC First Division was concurred in by
103

Commissioners Louie Tito F. Guia and Ma. Rowena Amelia V. Guanzon. Presiding
Commissioner Christian Robert S. Lim issued a Separate Dissenting Opinion.

104
318 Phil. 329 (1995).

105
595 Phil. 449 (2008).

106
Romualdez-Marcos v. COMELEC, supra note 104 at 396-397.

107
Id. at 397-398; Fermin v. COMELEC, supra note 105 at 471-472.

In A.M. No. 02-6-02-SC, Resolution Approving The Proposed Rule on Adoption (Domestic
108

and Inter-Country), effective 22 August 2002, "foundling" is defined as "a deserted or

abandoned infant or child whose parents, guardian or relatives are unknown; or a child
committed to an orphanage or charitable or similar institution with unknown facts of birth and
parentage and registered in the Civil Register as a "foundling."

109
Article IV-Citizenship.

Sec. I. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippine Islands at the time of the
adoption of this Constitution,

(2) Those born in the Philippine Islands of foreign parents who, before the
adoption of this Constitution, had been elected to public office in the
Philippine Islands.

(3) Those whose fathers are citizens of the Philippines.

(4) Those whose mothers are citizens of the Philippines and, upon reaching
the age of majority, elect Philippine citizenship.

(5) Those who are naturalized in accordance with law.

Section 2. Philippine citizenship may be lost or reacquired in the manner provided by

law.

Article 163 to 182, Title VI of Executive Order No. 209, otherwise known as The Family
110

Code of the Philippines, which took effect on 4 August 1988.

111
Statistics from the PSA or its predecessor agencies are admissible evidence. See Herrera
v. COMELEC, 376 Phil. 443 (I 999) and Bagabuyo v. COMELEC, 593 Phil. 678 (2008). In
the latter case, the Court even took judicial notice of the figures.

112
Transcipt of Stenographic Notes, 9 February 2016, p. 40.

113
Section 3 (y), Rule 131.
114
236 Phil. 307 (1987).

115
Id. at314-315.

English translation of the Spanish original presented in the petitioner's pleadings before
116

the COMELEC and this Court. The COMELEC and private respondents have not disputed
the accuracy and correctness of the translation.

117
I Jose M. Aruego, The Framing of the Philippine Constitution 209 (1949).

118
TSN, 16 February 2016, pp. 20-21.

119
117 Phil. 976 (1963).

120
Id. at 978-979.

121
See Section 5 of the RA No. 8552: "Location of Unknown Parent(s). - It shall be the duty of
the Department or the child-caring agency which has custody of the child to exert all efforts
to locate his/her unknown biological parent(s). If such efforts fail, the child shall be registered
as a foundling and subsequently be the subject of legal proceedings where he/she shall be
declared abandoned." (Underlining supplied)

122
See Exhibit "l" in SPA No. 15-001 (DC) and SPA No. 15-00 (DC).

123
See Exhibit "2" in SPA No. 15-001 (DC) and SPA No. 15-00 (DC).

Razon, Jr. v. Tagitis, 621 Phil. 536, 600 (2009) citing Pharmaceutical and Health Care
124

Assoc. of the Philippines v. Duque III, 561 Phil. 386, 398 (2007).

125
Article 38.1, paragraphs (b) and (c) of the Statute of the International Court of Justice.

126
Mijares v. Ranada, 495 Phil. 372, 395 (2005).

Pharmaceutical and Health Care Assoc. of the Philippines v. Duque III, 561 Phil. 386, 400
127

(2007).

128
International School Alliance of Educators v. Quisumbing, 388 Phil. 661, 672-673 (2000).

129
CONSTITUTION, Art. III, Sec. 1.

130
Rep. of the Philippines v. Sandiganbayan, 454 Phil. 504, 545 (2003).

131
"Everyone has the right to a nationality."

132
See Introductory Note to the United Nations Convention on the Reduction of Statelessness
issued by the United Nations High Commissioner on Refugees.

133
Supra note 124.

134
Supra note 126.
135
Id. at 392; See footnote No. 55 of said case.

136
Pharmaceutical and Health Care Assoc. of the Philippines v. Duque III, supra note 127.

137
See Exhibits 38 and 39-series.

138
Opening Statement of the Solicitor General, p. 6.

First Division resolution dated 11 December 2015, upheld in toto by the COMELEC En
139

Banc.

140
409 Phil. 633, 649 (2001).

141
692 Phil. 407, 420 (2012).

142
551 Phil. 368, 381 (2007).

143
53 I Phil. 407, 417 (2006).

144
Supra note 142.

145
Supra note 140 at 646.

146
Id. at 651.

147
G.R. No. 217126-27, 10 November 2015.

148
Id.

149
Implementing Rules and Regulations of Republic Act No. 8552, Art. VI, Sec. 33.

150
Republic Act No. 8552 (1998), Sec. 14.

151
Republic Act No. 8552 (1998), Sec. 15.

152
Fernandez v. House of Representatives Electoral Tribunal, 623 Phil. 628, 660 (2009)
citing Japzon v. COMELEC, 596 Phil. 354, 370-372 (2009) further citing Papandayan, Jr. v.
COMELEC, 430 Phil. 754, 768-770 (2002) further further citing Romualdez v. RTC,
Br. 7, Tacloban City, G.R. No. 104960, 14 September 1993, 226 SCRA408, 415.

153
Domino v. COMELEC, 369 Phil. 798, 819 (1999).

154
TSN, 16 February 2016, p. 120.

155
434 Phil. 861 (2002).

156
596 Phil. 354 (2009).

157
G.R. No. 209835, 22 September 2015.
158
G.R. No. 207264, 25 June 2013, 699 SCRA 522.

159
Supra note 155.

160
Supra note 156.

161
Supra note 157.

162
Supra note 158.

163
Republic Act No. 6768 (1989), as amended, Sec. 2(a).

164
Republic Act No. 6768 (1989), as amended, Sec. I.

165
Republic Act No. 6768 (1989), as amended, Sec. 6.

166
Supra note 155.

167
Supra note 104 at 326. (Emphasis supplied)

168
Ugdoracion, Jr. v. COMELEC, 575 Phil. 253, 265-266 (2008).

In Mitra v. COMELEC, et al., [636 Phil. 753 (2010)], It was ruled that the residence
169

requirement can be complied with through an incremental process including acquisition of

business interest in the pertinent place and lease of feedmill building as residence.

170
COMELEC Resolution dated 11 December2015 in SPA No. 15-002 (DC), pp. 4-5.
G.R. No. 135083 May 26, 1999

ERNESTO S. MERCADO, petitioner,

vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.

MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for
vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza
III. The results of the election were as follows:

Eduardo B. Manzano 103,853

Ernesto S. Mercado 100,894

Gabriel V. Daza III 54,2751

The proclamation of private respondent was suspended in view of a pending petition for
disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a
citizen of the Philippines but of the United States.

In its resolution, dated May 7, 1998,2 the Second Division of the COMELEC granted the petition of
Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the
ground that he is a dual citizen and, under §40(d) of the Local Government Code, persons with dual
citizenship are disqualified from running for any elective position. The COMELEC's Second Division
said:

What is presented before the Commission is a petition for disqualification of Eduardo

Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May
11, 1998 elections. The petition is based on the ground that the respondent is an
American citizen based on the record of the Bureau of Immigration and
misrepresented himself as a natural-born Filipino citizen.

In his answer to the petition filed on April 27, 1998, the respondent admitted that he
is registered as a foreigner with the Bureau of Immigration under Alien Certificate of
Registration No. B-31632 and alleged that he is a Filipino citizen because he was
born in 1955 of a Filipino father and a Filipino mother. He was born in the United
States, San Francisco, California, September 14, 1955, and is considered in
American citizen under US Laws. But notwithstanding his registration as an
American citizen, he did not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent Manzano is born a
Filipino and a US citizen. In other words, he holds dual citizenship.

The question presented is whether under our laws, he is disqualified from the
position for which he filed his certificate of candidacy. Is he eligible for the office he
seeks to be elected?
 Under Section 40(d) of the Local Government Code, those holding dual citizenship
are disqualified from running for any elective local position.

WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios

Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.

On May 8, 1998, private respondent filed a motion for reconsideration.3 The motion remained
pending even until after the election held on May 11, 1998.

Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the
board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the
proclamation of the winner.

On May 19, 1998, petitioner sought to intervene in the case for disqualification.4 Petitioner's motion
was opposed by private respondent.

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its
resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the
ruling of its Second Division and declared private respondent qualified to run for vice mayor of the
City of Makati in the May 11, 1998 elections.5 The pertinent portions of the resolution of the
COMELEC en banc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco,

California, U.S.A. He acquired US citizenship by operation of the United States
Constitution and laws under the principle ofjus soli.

He was also a natural born Filipino citizen by operation of the 1935 Philippine
Constitution, as his father and mother were Filipinos at the time of his birth. At the
age of six (6), his parents brought him to the Philippines using an American passport
as travel document. His parents also registered him as an alien with the Philippine
Bureau of Immigration. He was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine citizenship, as he did not
renounce Philippine citizenship and did not take an oath of allegiance to the United
States.

It is an undisputed fact that when respondent attained the age of majority, he

registered himself as a voter, and voted in the elections of 1992, 1995 and 1998,
which effectively renounced his US citizenship under American law. Under Philippine
law, he no longer had U.S. citizenship.

At the time of the May 11, 1998 elections, the resolution of the Second Division,
adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the
highest number of votes among the candidates for vice-mayor of Makati City,
garnering one hundred three thousand eight hundred fifty three (103,853) votes over
his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight
hundred ninety four (100,894) votes, or a margin of two thousand nine hundred fifty
nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two
hundred seventy five (54,275) votes. In applying election laws, it would be far better
to err in favor of the popular choice than be embroiled in complex legal issues
involving private international law which may well be settled before the highest court
(Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).
 WHEREFORE, the Commission en banc hereby REVERSES the resolution of the
Second Division, adopted on May 7, 1998, ordering the cancellation of the
respondent's certificate of candidacy.

We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a

candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon
proper notice to the parties, to reconvene and proclaim the respondent Eduardo Luis
Barrios Manzano as the winning candidate for vice-mayor of Makati City.

Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of
August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati.

This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en
banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City.
Petitioner contends that —

[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen when he:

1. He renounced his U.S. citizenship when he attained the age of

majority when he was already 37 years old; and,

2. He renounced his U.S. citizenship when he (merely) registered

himself as a voter and voted in the elections of 1992, 1995 and 1998.

B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the
City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second Division
adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be
declared the winner even assuming that Manzano is disqualified to run for and hold
the elective office of Vice-Mayor of the City of Makati.

We first consider the threshold procedural issue raised by private respondent Manzano — whether
petitioner Mercado his personality to bring this suit considering that he was not an original party in
the case for disqualification filed by Ernesto Mamaril nor was petitioner's motion for leave to
intervene granted.

I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the
COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot
bring this suit to set aside the ruling denying his motion for intervention:

Sec. 1. When proper and when may be permitted to intervene. — Any person
allowed to initiate an action or proceeding may, before or during the trial of an action
or proceeding, be permitted by the Commission, in its discretion to intervene in such
action or proceeding, if he has legal interest in the matter in litigation, or in the
 success of either of the parties, or an interest against both, or when he is so situated
as to be adversely affected by such action or proceeding.

xxx xxx xxx

Sec. 3. Discretion of Commission. — In allowing or disallowing a motion for

intervention, the Commission or the Division, in the exercise of its discretion, shall
consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether or not the intervenor's
rights may be fully protected in a separate action or proceeding.

Private respondent argues that petitioner has neither legal interest in the matter in litigation
nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of
Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City if the private
respondent be ultimately disqualified by final and executory judgment."

The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the
proceedings before the COMELEC, there had already been a proclamation of the results of the
election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only
second to private respondent. The fact, however, is that there had been no proclamation at that time.
Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the
time he sought to intervene. The rule in Labo v. COMELEC,6 reiterated in several cases,7 only
applies to cases in which the election of the respondent is contested, and the question is whether
one who placed second to the disqualified candidate may be declared the winner. In the present
case, at the time petitioner filed a "Motion for Leave to File Intervention" on May 20, 1998, there had
been no proclamation of the winner, and petitioner's purpose was precisely to have private
respondent disqualified "from running for [an] elective local position" under §40(d) of R.A. No. 7160.
If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of
Makati City, was competent to bring the action, so was petitioner since the latter was a rival
candidate for vice mayor of Makati City.

Nor is petitioner's interest in the matter in litigation any less because he filed a motion for
intervention only on May 20, 1998, after private respondent had been shown to have garnered the
highest number of votes among the candidates for vice mayor. That petitioner had a right to
intervene at that stage of the proceedings for the disqualification against private respondent is clear
from §6 of R.A. No. 6646, otherwise known as the Electoral Reform Law of 1987, which provides:

Any candidate who his been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the
evidence of guilt is strong.

Under this provision, intervention may be allowed in proceedings for disqualification even after
election if there has yet been no final judgment rendered.

The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount
to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the
COMELEC en banc instead decided the merits of the case, the present petition properly deals not
only with the denial of petitioner's motion for intervention but also with the substantive issues
respecting private respondent's alleged disqualification on the ground of dual citizenship.

This brings us to the next question, namely, whether private respondent Manzano possesses dual
citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City.

II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under §40 of the Local
Government Code of 1991 (R.A. No. 7160), which declares as "disqualified from running for any
elective local position: . . . (d) Those with dual citizenship." This provision is incorporated in the
Charter of the City of Makati. 8

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him
in this case, contends that through §40(d) of the Local Government Code, Congress has
"command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local
elective office."

To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result
of the concurrent application of the different laws of two or more states, a person is simultaneously
considered a national by the said states.9 For instance, such a situation may arise when a person
whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state
which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his
part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV)
of our Constitution, it is possible for the following classes of citizens of the Philippines to possess
dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of
their father's' country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter's country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act,
be also a citizen of another state; but the above cases are clearly possible given the constitutional
provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance
is the result of an individual's volition.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: "Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law." This provision was included
in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity
as follows: 10
 . . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I
have circulated a memorandum to the Bernas Committee according to which a dual
allegiance — and I reiterate a dual allegiance — is larger and more threatening than
that of mere double citizenship which is seldom intentional and, perhaps, never
insidious. That is often a function of the accident of mixed marriages or of birth on
foreign soil. And so, I do not question double citizenship at all.

What we would like the Committee to consider is to take constitutional cognizance of

the problem of dual allegiance. For example, we all know what happens in the
triennial elections of the Federation of Filipino-Chinese Chambers of Commerce
which consists of about 600 chapters all over the country. There is a Peking ticket, as
well as a Taipei ticket. Not widely known is the fact chat the Filipino-Chinese
community is represented in the Legislative Yuan of the Republic of China in Taiwan.
And until recently, sponsor might recall, in Mainland China in the People's Republic
of China, they have the Associated Legislative Council for overseas Chinese wherein
all of Southeast Asia including some European and Latin countries were
represented, which was dissolved after several years because of diplomatic friction.
At that time, the Filipino-Chinese were also represented in that Overseas Council.

When I speak of double allegiance, therefore, I speak of this unsettled kind of

allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts,
may be said to be bound by a second allegiance, either to Peking or Taiwan. I also
took close note of the concern expressed by some Commissioners yesterday,
including Commissioner Villacorta, who were concerned about the lack of guarantees
of thorough assimilation, and especially Commissioner Concepcion who has always
been worried about minority claims on our natural resources.

Dull allegiance can actually siphon scarce national capital to Taiwan, Singapore,
China or Malaysia, and this is already happening. Some of the great commercial
places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese — it is of
common knowledge in Manila. It can mean a tragic capital outflow when we have to
endure a capital famine which also means economic stagnation, worsening
unemployment and social unrest.

And so, this is exactly what we ask — that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on Citizenship which
will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND
SHALL BE DEALT WITH ACCORDING TO LAW.

In another session of the Commission, Ople spoke on the problem of these citizens with dual
allegiance, thus: 11

. . . A significant number of Commissioners expressed their concern about dual

citizenship in the sense that it implies a double allegiance under a double sovereignty
which some of us who spoke then in a freewheeling debate thought would be
repugnant to the sovereignty which pervades the Constitution and to citizenship itself
which implies a uniqueness and which elsewhere in the Constitution is defined in
terms of rights and obligations exclusive to that citizenship including, of course, the
obligation to rise to the defense of the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern for national security. In the course
of those debates, I think some noted the fact that as a result of the wave of
naturalizations since the decision to establish diplomatic relations with the People's
 Republic of China was made in 1975, a good number of these naturalized Filipinos
still routinely go to Taipei every October 10; and it is asserted that some of them do
renew their oath of allegiance to a foreign government maybe just to enter into the
spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is
commemorated. And so, I have detected a genuine and deep concern about double
citizenship, with its attendant risk of double allegiance which is repugnant to our
sovereignty and national security. I appreciate what the Committee said that this
could be left to the determination of a future legislature. But considering the scale of
the problem, the real impact on the security of this country, arising from, let us say,
potentially great numbers of double citizens professing double allegiance, will the
Committee entertain a proposed amendment at the proper time that will prohibit, in
effect, or regulate double citizenship?

Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was
not with dual citizens per se but with naturalized citizens who maintain their allegiance to their
countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No.
7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to "dual allegiance."
Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those
with dual allegiance, who must, therefore, be subject to strict process with respect to the termination
of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with
dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of
different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional
Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no
control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But
whether she is considered a citizen of another country is something completely beyond our
control." 12

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other
country of which they are also citizens and thereby terminate their status as dual citizens. It may be
that, from the point of view of the foreign state and of its laws, such an individual has not effectively
renounced his foreign citizenship. That is of no moment as the following discussion on §40(d)
between Senators Enrile and Pimentel clearly shows: 13

SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page
17: "Any person with dual citizenship" is disqualified to run for any elective local
position. Under the present Constitution, Mr. President, someone whose mother is a
citizen of the Philippines but his father is a foreigner is a natural-born citizen of the
Republic. There is no requirement that such a natural born citizen, upon reaching the
age of majority, must elect or give up Philippine citizenship.

On the assumption that this person would carry two passports, one belonging to the
country of his or her father and one belonging to the Republic of the Philippines, may
such a situation disqualify the person to run for a local government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment
when he would want to run for public office, he has to repudiate one of his
citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of
origin or the country of the father claims that person, nevertheless, as a citizen? No
one can renounce. There are such countries in the world.
 SENATOR PIMENTEL. Well, the very fact that he is running for public office would,
in effect, be an election for him of his desire to be considered as a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require
an election. Under the Constitution, a person whose mother is a citizen of the
Philippines is, at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the
Gentleman's example, if he does not renounce his other citizenship, then he is
opening himself to question. So, if he is really interested to run, the first thing he
should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I
have only one citizenship."

SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr.
President. He will always have one citizenship, and that is the citizenship invested
upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will
prove that he also acknowledges other citizenships, then he will probably fall under
this disqualification.

This is similar to the requirement that an applicant for naturalization must renounce "all allegiance
and fidelity to any foreign prince, potentate, state, or sovereignty" 14 of which at the time he is a
subject or citizen before he can be issued a certificate of naturalization as a citizen of the
Philippines. In Parado v. Republic, 15 it was held:

[W]hen a person applying for citizenship by naturalization takes an oath that he

renounce, his loyalty to any other country or government and solemnly declares that
he owes his allegiance to the Republic of the Philippines, the condition imposed by
law is satisfied and compiled with. The determination whether such renunciation is
valid or fully complies with the provisions of our Naturalization Law lies within the
province and is an exclusive prerogative of our courts. The latter should apply the
law duly enacted by the legislative department of the Republic. No foreign law may or
should interfere with its operation and application. If the requirement of the Chinese
Law of Nationality were to be read into our Naturalization Law, we would be applying
not what our legislative department has deemed it wise to require, but what a foreign
government has thought or intended to exact. That, of course, is absurd. It must be
resisted by all means and at all cost. It would be a brazen encroachment upon the
sovereign will and power of the people of this Republic.

III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4,
1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the
United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a
national both of the Philippines and of the United States. However, the COMELEC en banc held that,
by participating in Philippine elections in 1992, 1995, and 1998, private respondent "effectively
renounced his U.S. citizenship under American law," so that now he is solely a Philippine national.

Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not
sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made
when private respondent was already 37 years old, it was ineffective as it should have been made
when he reached the age of majority.

In holding that by voting in Philippine elections private respondent renounced his American
citizenship, the COMELEC must have in mind §349 of the Immigration and Nationality Act of the
United States, which provided that "A person who is a national of the United States, whether by birth
or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or
participating in an election or plebiscite to determine the sovereignty over foreign territory." To be
sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk 16 as
beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a
certificate of candidacy when he ran for his present post, private respondent elected Philippine
citizenship and in effect renounced his American citizenship. Private respondent's certificate of
candidacy, filed on March 27, 1998, contained the following statements made under oath:

6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR

"NATURALIZED") NATURAL-BORN

xxx xxx xxx

10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN

LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR.

11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN

COUNTRY.

12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT

AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN
TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS,
LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED
AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE
THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL
RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE
FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL
KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively
removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was
held: 17

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give him dual citizenship, which under
Sec. 40 of the Local Government Code would disqualify him "from running for any
elective local position?" We answer this question in the negative, as there is cogent
reason to hold that Frivaldo was really STATELESS at the time he took said oath of
allegiance and even before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he "had long renounced and had long abandoned his American
citizenship — long before May 8, 1995. At best, Frivaldo was stateless in the interim
— when he abandoned and renounced his US citizenship but before he was
repatriated to his Filipino citizenship."

On this point, we quote from the assailed Resolution dated December 19, 1995:
 By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an oath of allegiance to the
Philippine Government.

These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic
that such findings of the Commission are conclusive upon this Court, absent any
showing of capriciousness or arbitrariness or abuse.

There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private
respondent's certificate of candidacy is insufficient to constitute renunciation that, to be effective,
such renunciation should have been made upon private respondent reaching the age of majority
since no law requires the election of Philippine citizenship to be made upon majority age.

Finally, much is made of the fact that private respondent admitted that he is registered as an
American citizen in the Bureau of Immigration and Deportation and that he holds an American
passport which he used in his last travel to the United States on April 22, 1997. There is no merit in
this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The
acts attributed to him can be considered simply as the assertion of his American nationality before
the termination of his American citizenship. What this Court said in Aznar
v. COMELEC 18 applies mutatis mundatis to private respondent in the case at bar:

. . . Considering the fact that admittedly Osmeña was both a Filipino and an
American, the mere fact that he has a Certificate staring he is an American does not
mean that he is not still a Filipino. . . . [T]he Certification that he is an American does
not mean that he is not still a Filipino, possessed as he is, of both nationalities or
citizenships. Indeed, there is no express renunciation here of Philippine citizenship;
truth to tell, there is even no implied renunciation of said citizenship. When We
consider that the renunciation needed to lose Philippine citizenship must be
"express," it stands to reason that there can be no such loss of Philippine citizenship
when there is no renunciation, either "express" or "implied."

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a
permanent resident or immigrant of another country; that he will defend and support the Constitution
of the Philippines and bear true faith and allegiance thereto and that he does so without mental
reservation, private respondent has, as far as the laws of this country are concerned, effectively
repudiated his American citizenship and anything which he may have said before as a dual citizen.

On the other hand, private respondent's oath of allegiance to the Philippines, when considered with
the fact that he has spent his youth and adulthood, received his education, practiced his profession
as an artist, and taken part in past elections in this country, leaves no doubt of his election of
Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, 19 we
sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as
a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can
be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality,
but subsequently does some act constituting renunciation of his Philippine citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. 1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena, Gonzaga-
Reyes and Ynares-Santiago, JJ., concur.

Panganiban and Purisima, JJ., are on leave.

Pardo, J., took no part.

Footnotes

1 Petition, Rollo, p. 5.

2 Per Commissioner Amado M. Calderon and concurred in by Commissioners Julio

F. Desamito and Japal M. Guiani.

3 Id., Annex E, Rollo, pp. 50-63.

4 Rollo, pp. 78-83.

5 Per Chairman Bernardo P. Pardo and concurred in by Commissioners Manolo B.

Gorospe, Teresita Dy-Liaco Flores, Japal M. Guiani, and Luzviminda G. Tancangco.
Commissioner Julio F. Desamito dissented.

6 176 SCRA 1 (1989).

7 Abella v. COMELEC, 201 SCRA 253 (1991); Benito v. COMELEC, 235 SCRA 436
(1991); Aquino v. COMELEC, 248 SCRA 400 (1995); Frivaldo v. COMELEC, 257
SCRA 727 (1996).

8 R.A. No. 7854, the Charter of the City of Makati, provides: "SEC. 20 — The
following are disqualified from running for any elective position in the city: . . . (d)
Those with dual citizenship."

9 JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW 166 (1995).

10 Id., at 361 (Session of July 8, 1986).

11 Id., at 233-234 (Session of June 25, 1986).

12 1 RECORD OF THE CONSTITUTIONAL COMMISSION 203 (Session of June 23,

1986).

13 Transcript, pp. 5-6, Session of Nov. 27, 1990.

14 C.A. No. 473, §12.

15 86 Phil. 310, 343 (1950).

16 387 U.S. 18 L. Ed. 2d 757 (1967), overruling Perez v. Brownell, 356 U.S. 2 L. Ed.
2d 603 (1958).

17 257 SCRA 727, 759-760 (1996).

18 185 SCRA 703, 711 (1990). See also Kawakita v. United States, 343 U.S. 717, 96
L. Ed. 1249 (1952).

19 169 SCRA 364 (1989).

B.M. No. 1678 December 17, 2007

PETITION FOR LEAVE TO RESUME PRACTICE OF LAW,

BENJAMIN M. DACANAY, petitioner.

RESOLUTION

CORONA, J.:

This bar matter concerns the petition of petitioner Benjamin M. Dacanay for leave to resume the
practice of law.

Petitioner was admitted to the Philippine bar in March 1960. He practiced law until he migrated to
Canada in December 1998 to seek medical attention for his ailments. He subsequently applied for
Canadian citizenship to avail of Canada’s free medical aid program. His application was approved
and he became a Canadian citizen in May 2004.

On July 14, 2006, pursuant to Republic Act (RA) 9225 (Citizenship Retention and Re-Acquisition Act
of 2003), petitioner reacquired his Philippine citizenship.1 On that day, he took his oath of allegiance
as a Filipino citizen before the Philippine Consulate General in Toronto, Canada. Thereafter, he
returned to the Philippines and now intends to resume his law practice. There is a question,
however, whether petitioner Benjamin M. Dacanay lost his membership in the Philippine bar when
he gave up his Philippine citizenship in May 2004. Thus, this petition.

In a report dated October 16, 2007, the Office of the Bar Confidant cites Section 2, Rule 138
(Attorneys and Admission to Bar) of the Rules of Court:

SECTION 2. Requirements for all applicants for admission to the bar. – Every applicant for
admission as a member of the bar must be a citizen of the Philippines, at least twenty-one
years of age, of good moral character, and a resident of the Philippines; and must produce
before the Supreme Court satisfactory evidence of good moral character, and that no
charges against him, involving moral turpitude, have been filed or are pending in any court in
the Philippines.

Applying the provision, the Office of the Bar Confidant opines that, by virtue of his reacquisition of
Philippine citizenship, in 2006, petitioner has again met all the qualifications and has none of the
disqualifications for membership in the bar. It recommends that he be allowed to resume the practice
of law in the Philippines, conditioned on his retaking the lawyer’s oath to remind him of his duties
and responsibilities as a member of the Philippine bar.

We approve the recommendation of the Office of the Bar Confidant with certain modifications.

The practice of law is a privilege burdened with conditions.2 It is so delicately affected with public
interest that it is both a power and a duty of the State (through this Court) to control and regulate it in
order to protect and promote the public welfare.3

Adherence to rigid standards of mental fitness, maintenance of the highest degree of morality,
faithful observance of the rules of the legal profession, compliance with the mandatory continuing
legal education requirement and payment of membership fees to the Integrated Bar of the
Philippines (IBP) are the conditions required for membership in good standing in the bar and for
enjoying the privilege to practice law. Any breach by a lawyer of any of these conditions makes him
unworthy of the trust and confidence which the courts and clients repose in him for the continued
exercise of his professional privilege.4

Section 1, Rule 138 of the Rules of Court provides:

SECTION 1. Who may practice law. – Any person heretofore duly admitted as a member of
the bar, or thereafter admitted as such in accordance with the provisions of this Rule, and
who is in good and regular standing, is entitled to practice law.

Pursuant thereto, any person admitted as a member of the Philippine bar in accordance with the
statutory requirements and who is in good and regular standing is entitled to practice law.

Admission to the bar requires certain qualifications. The Rules of Court mandates that an applicant
for admission to the bar be a citizen of the Philippines, at least twenty-one years of age, of good
moral character and a resident of the Philippines.5 He must also produce before this Court
satisfactory evidence of good moral character and that no charges against him, involving moral
turpitude, have been filed or are pending in any court in the Philippines.6

Moreover, admission to the bar involves various phases such as furnishing satisfactory proof of
educational, moral and other qualifications;7 passing the bar examinations;8 taking the lawyer’s
oath9 and signing the roll of attorneys and receiving from the clerk of court of this Court a certificate
of the license to practice.10

The second requisite for the practice of law ― membership in good standing ― is a continuing
requirement. This means continued membership and, concomitantly, payment of annual
membership dues in the IBP;11 payment of the annual professional tax;12 compliance with the
mandatory continuing legal education requirement;13 faithful observance of the rules and ethics of
the legal profession and being continually subject to judicial disciplinary control.14

Given the foregoing, may a lawyer who has lost his Filipino citizenship still practice law in the
Philippines? No.

The Constitution provides that the practice of all professions in the Philippines shall be limited to
Filipino citizens save in cases prescribed by law.15 Since Filipino citizenship is a requirement for
admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently,
the privilege to engage in the practice of law. In other words, the loss of Filipino citizenship ipso
jure terminates the privilege to practice law in the Philippines. The practice of law is a privilege
denied to foreigners.16

The exception is when Filipino citizenship is lost by reason of naturalization as a citizen of another
country but subsequently reacquired pursuant to RA 9225. This is because "all Philippine citizens
who become citizens of another country shall be deemed not to have lost their Philippine
citizenship under the conditions of [RA 9225]."17Therefore, a Filipino lawyer who becomes a citizen
of another country is deemed never to have lost his Philippine citizenship if he reacquires it in
accordance with RA 9225. Although he is also deemed never to have terminated his membership
in the Philippine bar, no automatic right to resume law practice accrues.

Under RA 9225, if a person intends to practice the legal profession in the Philippines and he
reacquires his Filipino citizenship pursuant to its provisions "(he) shall apply with the proper authority
for a license or permit to engage in such practice."18 Stated otherwise, before a lawyer who
reacquires Filipino citizenship pursuant to RA 9225 can resume his law practice, he must first secure
from this Court the authority to do so, conditioned on:
 (a) the updating and payment in full of the annual membership dues in the IBP;

(b) the payment of professional tax;

(c) the completion of at least 36 credit hours of mandatory continuing legal education; this is
specially significant to refresh the applicant/petitioner’s knowledge of Philippine laws and
update him of legal developments and

(d) the retaking of the lawyer’s oath which will not only remind him of his duties and
responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to
maintain allegiance to the Republic of the Philippines.

Compliance with these conditions will restore his good standing as a member of the Philippine bar.

WHEREFORE, the petition of Attorney Benjamin M. Dacanay is hereby GRANTED, subject to

compliance with the conditions stated above and submission of proof of such compliance to the Bar
Confidant, after which he may retake his oath as a member of the Philippine bar.

SO ORDERED.

Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales,

Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro, JJ., concur.
Quisumbing, J., on leave.

Footnotes

1As evidence thereof, he submitted a copy of his Identification Certificate No. 07-16912 duly
signed by Immigration Commissioner Marcelino C. Libanan.

2In the Matter of the IBP Membership Dues Deliquency of Atty. Marcial A. Edillon, A.C. No.
1928, 19 December 1980, 101 SCRA 612.

3 Heck v. Santos, A.M. No. RTJ-01-1657, 23 February 2004, 423 SCRA 329.

4 In re Atty. Marcial Edillon, A.C. No. 1928, 03 August 1978, 84 SCRA 554.

5
Section 2, Rule 138, Rules of Court.

6 Id.

7 Sections 2, 5 and 6, id.

8 Sections 8 to 11 and 14, id.

9 Section 17, id.

10 Sections 18 and 19, id.

 In re Integration of the Bar of the Philippines, 09 January 1973, 49 SCRA 22; In re Atty.
11

Marcial Edillon, supra note 3.

12 Section 139, RA 7160.

13Resolution dated August 8, 2000 in Bar Matter No. 850 (Rules on Mandatory Continuing
Legal Education for Members of the IBP).

14Philippine Association of Free Labor Unions v. Binalbagan Isabela Sugar Co., G.R. No. L-
23959, 29 November 1971, 42 SCRA 302.

15 See last paragraph of Section 14, Article XII.

16
In re Bosque, 1 Phil. 88 (1902).

17 Section 2, RA 9225. Emphasis supplied.

18 Section 5(4), id.

G.R. No. 179848 November 27, 2008

NESTOR A. JACOT, petitioner,

vs.
ROGEN T. DAL and COMMISSION ON ELECTIONS, respondents.

DECISION

CHICO-NAZARIO, J.:

Petitioner Nestor A. Jacot assails the Resolution1 dated 28 September 2007

of the Commission on Elections (COMELEC) En Banc in SPA No. 07-361,
affirming the Resolution dated 12 June 2007 of the COMELEC Second
Division2 disqualifying him from running for the position of Vice-Mayor of
Catarman, Camiguin, in the 14 May 2007 National and Local Elections, on the
ground that he failed to make a personal renouncement of his United States
(US) citizenship.

Petitioner was a natural born citizen of the Philippines, who became a

naturalized citizen of the US on 13 December 1989. 3

Petitioner sought to reacquire his Philippine citizenship under Republic Act

No. 9225, otherwise known as the Citizenship Retention and Re-Acquisition
Act. He filed a request for the administration of his Oath of Allegiance to the
Republic of the Philippines with the Philippine Consulate General (PCG) of
Los Angeles, California. The Los Angeles PCG issued on 19 June 2006 an
Order of Approval4 of petitioner’s request, and on the same day, petitioner
took his Oath of Allegiance to the Republic of the Philippines before Vice
Consul Edward C. Yulo. 5 On 27 September 2006, the Bureau of Immigration
issued Identification Certificate No. 06-12019 recognizing petitioner as a
citizen of the Philippines.6

Six months after, on 26 March 2007, petitioner filed his Certificate of

Candidacy for the Position of Vice-Mayor of the Municipality of Catarman,
Camiguin. 7

On 2 May 2007, respondent Rogen T. Dal filed a Petition for

Disqualification8 before the COMELEC Provincial Office in Camiguin against
petitioner, arguing that the latter failed to renounce his US citizenship, as
required under Section 5(2) of Republic Act No. 9225, which reads as follows:
 Section 5. Civil and Political Rights and Liabilities.–Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions:

xxxx

(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to
administer an oath.

In his Answer9 dated 6 May 2007 and Position Paper10 dated 8 May 2007,
petitioner countered that his Oath of Allegiance to the Republic of the
Philippines made before the Los Angeles PCG and the oath contained in his
Certificate of Candidacy operated as an effective renunciation of his foreign
citizenship.

In the meantime, the 14 May 2007 National and Local Elections were held.
Petitioner garnered the highest number of votes for the position of Vice Mayor.

On 12 June 2007, the COMELEC Second Division finally issued its

Resolution11 disqualifying the petitioner from running for the position of Vice-
Mayor of Catarman, Camiguin, for failure to make the requisite renunciation of
his US citizenship. The COMELEC Second Division explained that the
reacquisition of Philippine citizenship under Republic Act No. 9225 does not
automatically bestow upon any person the privilege to run for any elective
public office. It additionally ruled that the filing of a Certificate of Candidacy
cannot be considered as a renunciation of foreign citizenship. The COMELEC
Second Division did not consider Valles v. COMELEC12 and Mercado v.
Manzano13applicable to the instant case, since Valles and Mercado were dual
citizens since birth, unlike the petitioner who lost his Filipino citizenship by
means of naturalization. The COMELEC, thus, decreed in the aforementioned
Resolution that:

ACCORDINGLY, NESTOR ARES JACOT is DISQUALIFIED to run for

the position of Vice-Mayor of Catarman, Camiguin for the May 14, 2007
National and Local Elections. If proclaimed, respondent cannot thus
 assume the Office of Vice-Mayor of said municipality by virtue of such
disqualification.14

Petitioner filed a Motion for Reconsideration on 29 June 2007 reiterating his

position that his Oath of Allegiance to the Republic of the Philippines before
the Los Angeles PCG and his oath in his Certificate of Candidacy sufficed as
an effective renunciation of his US citizenship. Attached to the said Motion
was an "Oath of Renunciation of Allegiance to the United States and
Renunciation of Any and All Foreign Citizenship" dated 27 June 2007, wherein
petitioner explicitly renounced his US citizenship.15 The COMELEC en
banc dismissed petitioner’s Motion in a Resolution16 dated 28 September
2007 for lack of merit.

Petitioner sought remedy from this Court via the present Special Civil Action
for Certiorari under Rule 65 of the Revised Rules of Court, where he
presented for the first time an "Affidavit of Renunciation of Allegiance to the
United States and Any and All Foreign Citizenship"17 dated 7 February 2007.
He avers that he executed an act of renunciation of his US citizenship,
separate from the Oath of Allegiance to the Republic of the Philippines he
took before the Los Angeles PCG and his filing of his Certificate of Candidacy,
thereby changing his theory of the case during the appeal. He attributes the
delay in the presentation of the affidavit to his former counsel, Atty. Marciano
Aparte, who allegedly advised him that said piece of evidence was
unnecessary but who, nevertheless, made him execute an identical document
entitled "Oath of Renunciation of Allegiance to the United States and
Renunciation of Any and All Foreign Citizenship" on 27 June 2007 after he
had already filed his Certificate of Candidacy.18

Petitioner raises the following issues for resolution of this Court:

WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE

ABUSE OF DISCRETION WHEN IT HELD THAT PETITIONER FAILED
TO COMPLY WITH THE PROVISIONS OF R.A. 9225, OTHERWISE
KNOWN AS THE "CITIZENSHIP RETENTION AND RE-ACQUISITION
ACT OF 2003," SPECIFICALLY SECTION 5(2) AS TO THE
REQUIREMENTS FOR THOSE SEEKING ELECTIVE PUBLIC
OFFICE;

II
 WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE
ABUSE OF DISCRETION WHEN IT HELD THAT PETITIONER FAILED
TO COMPLY WITH THE PROVISIONS OF THE COMELEC RULES OF
PROCEDURE AS REGARDS THE PAYMENT OF THE NECESSARY
MOTION FEES; AND

III

WHETHER OR NOT UPHOLDING THE DECISION OF PUBLIC

RESPONDENT WOULD RESULT IN THE FRUSTRATION OF THE
WILL OF THE PEOPLE OF CATARMAN, CAMIGUIN.19

The Court determines that the only fundamental issue in this case is whether
petitioner is disqualified from running as a candidate in the 14 May 2007 local
elections for his failure to make a personal and sworn renunciation of his US
citizenship.

This Court finds that petitioner should indeed be disqualified.

Contrary to the assertions made by petitioner, his oath of allegiance to the

Republic of the Philippines made before the Los Angeles PCG and his
Certificate of Candidacy do not substantially comply with the requirement of a
personal and sworn renunciation of foreign citizenship because these are
distinct requirements to be complied with for different purposes.

Section 3 of Republic Act No. 9225 requires that natural-born citizens of

the Philippines, who are already naturalized citizens of a foreign country, must
take the following oath of allegiance to the Republic of the Philippines to
reacquire or retain their Philippine citizenship:

SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the

contrary notwithstanding, natural-born citizens of the Philippines who
have lost their Philippine citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have reacquired
Philippine citizenship upon taking the following oath of allegiance to the
Republic:

"I __________ solemnly swear (or affirm) that I will support and defend
the Constitution of the Republic of the Philippines and obey the laws
and legal orders promulgated by the duly constituted authorities of the
Philippines; and I hereby declare that I recognize and accept the
supreme authority of the Philippines and will maintain true faith and
 allegiance thereto; and that I impose this obligation upon myself
voluntarily, without mental reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this

Act, become citizens of a foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath.

By the oath dictated in the afore-quoted provision, the Filipino swears

allegiance to the Philippines, but there is nothing therein on his renunciation of
foreign citizenship. Precisely, a situation might arise under Republic Act No.
9225 wherein said Filipino has dual citizenship by also reacquiring or retaining
his Philippine citizenship, despite his foreign citizenship.

The afore-quoted oath of allegiance is substantially similar to the one

contained in the Certificate of Candidacy which must be executed by any
person who wishes to run for public office in Philippine elections. Such an
oath reads:

I am eligible for the office I seek to be elected. I will support and defend
the Constitution of the Philippines and will maintain true faith and
allegiance thereto; that I will obey the laws, legal orders and decrees
promulgated by the duly constituted authorities of the Republic of the
Philippines; and that I impose this obligation upon myself voluntarily,
without mental reservation or purpose of evasion. I hereby certify that
the facts stated herein are true and correct of my own personal
knowledge.

Now, Section 5(2) of Republic Act No. 9225 specifically provides that:

Section 5. Civil and Political Rights and Liabilities.–Those who retain or

reacquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions:

xxxx

(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any
 and all foreign citizenship before any public officer authorized to
administer an oath.

The law categorically requires persons seeking elective public office, who
either retained their Philippine citizenship or those who reacquired it, to make
a personal and sworn renunciation of any and all foreign citizenship before a
public officer authorized to administer an oath simultaneous with or before the
filing of the certificate of candidacy.20

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born

Filipinos, who have been naturalized as citizens of a foreign country, but
who reacquired or retained their Philippine citizenship (1) to take the
oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for
those seeking elective public offices in the Philippines, to additionally
execute a personal and sworn renunciation of any and all foreign
citizenship before an authorized public officer prior or simultaneous to the
filing of their certificates of candidacy, to qualify as candidates in Philippine
elections.

Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal
and sworn renunciation of any and all foreign citizenship) requires of the
Filipinos availing themselves of the benefits under the said Act to accomplish
an undertaking other than that which they have presumably complied with
under Section 3 thereof (oath of allegiance to the Republic of the Philippines).
This is made clear in the discussion of the Bicameral Conference Committee
on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130
held on 18 August 2003 (precursors of Republic Act No. 9225), where the
Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor
explained to Hon. Representative Exequiel Javier that the oath of allegiance is
different from the renunciation of foreign citizenship:

CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public

office in the Philippines shall meet the qualifications for holding such
public office as required by the Constitution and existing laws and, at
the time of the filing of the certificate of candidacy, make a personal and
sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath." I think it’s very good, ha? No
problem?

REP. JAVIER. … I think it’s already covered by the oath.

CHAIRMAN DRILON. Renouncing foreign citizenship.

 REP. JAVIER. Ah… but he has taken his oath already.

CHAIRMAN DRILON. No…no, renouncing foreign citizenship.

xxxx

CHAIRMAN DRILON. Can I go back to No. 2. What’s your problem,

Boy? Those seeking elective office in the Philippines.

REP. JAVIER. They are trying to make him renounce his citizenship
thinking that ano…

CHAIRMAN DRILON. His American citizenship.

REP. JAVIER. To discourage him from running?

CHAIRMAN DRILON. No.

REP. A.D. DEFENSOR. No. When he runs he will only have one
citizenship. When he runs for office, he will have only
one. (Emphasis ours.)

There is little doubt, therefore, that the intent of the legislators was not only for
Filipinos reacquiring or retaining their Philippine citizenship under Republic
Act No. 9225 to take their oath of allegiance to the Republic of the Philippines,
but also to explicitly renounce their foreign citizenship if they wish to run for
elective posts in the Philippines. To qualify as a candidate in Philippine
elections, Filipinos must only have one citizenship, namely, Philippine
citizenship.

By the same token, the oath of allegiance contained in the Certificate of

Candidacy, which is substantially similar to the one contained in Section 3 of
Republic Act No. 9225, does not constitute the personal and sworn
renunciation sought under Section 5(2) of Republic Act No. 9225. It bears to
emphasize that the said oath of allegiance is a general requirement for all
those who wish to run as candidates in Philippine elections; while the
renunciation of foreign citizenship is an additional requisite only for those who
have retained or reacquired Philippine citizenship under Republic Act No.
9225 and who seek elective public posts, considering their special
circumstance of having more than one citizenship.
Petitioner erroneously invokes the doctrine in Valles21 and Mercado,22 wherein
the filing by a person with dual citizenship of a certificate of candidacy,
containing an oath of allegiance, was already considered a renunciation of
foreign citizenship. The ruling of this Court in Valles and Mercado is not
applicable to the present case, which is now specially governed by Republic
Act No. 9225, promulgated on 29 August 2003.

In Mercado, which was cited in Valles, the disqualification of therein private

respondent Manzano was sought under another law, Section 40(d) of the
Local Government Code, which reads:

SECTION 40. Disqualifications. The following persons are disqualified

from running for any elective local position:

xxxx

(d) Those with dual citizenship.

The Court in the aforesaid cases sought to define the term "dual
citizenship" vis-à-vis the concept of "dual allegiance." At the time this Court
decided the cases of Valles and Mercado on 26 May 1999 and 9 August
2000, respectively, the more explicitly worded requirements of Section 5(2) of
Republic Act No. 9225 were not yet enacted by our legislature.23

Lopez v. Commission on Elections24 is the more fitting precedent for this case
since they both share the same factual milieu. In Lopez, therein petitioner
Lopez was a natural-born Filipino who lost his Philippine citizenship after he
became a naturalized US citizen. He later reacquired his Philippine citizenship
by virtue of Republic Act No. 9225. Thereafter, Lopez filed his candidacy for a
local elective position, but failed to make a personal and sworn renunciation of
his foreign citizenship. This Court unequivocally declared that despite having
garnered the highest number of votes in the election, Lopez is nonetheless
disqualified as a candidate for a local elective position due to his failure to
comply with the requirements of Section 5(2) of Republic Act No. 9225.

Petitioner presents before this Court for the first time, in the instant Petition
for Certiorari, an "Affidavit of Renunciation of Allegiance to the United States
and Any and All Foreign Citizenship,"25 which he supposedly executed on 7
February 2007, even before he filed his Certificate of Candidacy on 26 March
2007. With the said Affidavit, petitioner puts forward in the Petition at bar a
new theory of his case–that he complied with the requirement of making a
personal and sworn renunciation of his foreign citizenship before filing his
Certificate of Candidacy. This new theory constitutes a radical change from
the earlier position he took before the COMELEC–that he complied with the
requirement of renunciation by his oaths of allegiance to the Republic of the
Philippines made before the Los Angeles PCG and in his Certificate of
Candidacy, and that there was no more need for a separate act of
renunciation.

As a rule, no question will be entertained on appeal unless it has been raised

in the proceedings below. Points of law, theories, issues and arguments not
brought to the attention of the lower court, administrative agency or quasi-
judicial body need not be considered by a reviewing court, as they cannot be
raised for the first time at that late stage. Basic considerations of fairness and
due process impel this rule.26 Courts have neither the time nor the resources
to accommodate parties who chose to go to trial haphazardly.27

Likewise, this Court does not countenance the late submission of

evidence.28 Petitioner should have offered the Affidavit dated 7 February 2007
during the proceedings before the COMELEC.

Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In

the absence of any applicable provisions of these Rules, the pertinent
provisions of the Rules of Court in the Philippines shall be applicable by
analogy or in suppletory character and effect." Section 34 of Rule 132 of the
Revised Rules of Court categorically enjoins the admission of evidence not
formally presented:

SEC. 34. Offer of evidence. - The court shall consider no evidence

which has not been formally offered. The purpose for which the
evidence is offered must be specified.

Since the said Affidavit was not formally offered before the COMELEC,
respondent had no opportunity to examine and controvert it. To admit this
document would be contrary to due process. 29Additionally, the piecemeal
presentation of evidence is not in accord with orderly justice.30

The Court further notes that petitioner had already presented before the
COMELEC an identical document, "Oath of Renunciation of Allegiance to the
United States and Renunciation of Any and All Foreign Citizenship" executed
on 27 June 2007, subsequent to his filing of his Certificate of Candidacy on 26
March 2007. Petitioner attached the said Oath of 27 June 2007 to his Motion
for Reconsideration with the COMELEC en banc. The COMELEC en
banc eventually refused to reconsider said document for being belatedly
executed. What was extremely perplexing, not to mention suspect, was that
petitioner did not submit the Affidavit of 7 February 2007 or mention it at all in
the proceedings before the COMELEC, considering that it could have easily
won his case if it was actually executed on and in existence before the filing of
his Certificate of Candidacy, in compliance with law.

The justification offered by petitioner, that his counsel had advised him against
presenting this crucial piece of evidence, is lame and unconvincing. If the
Affidavit of 7 February 2007 was in existence all along, petitioner’s counsel,
and even petitioner himself, could have easily adduced it to be a crucial piece
of evidence to prove compliance with the requirements of Section 5(2) of
Republic Act No. 9225. There was no apparent danger for petitioner to submit
as much evidence as possible in support of his case, than the risk of
presenting too little for which he could lose.

And even if it were true, petitioner’s excuse for the late presentation of the
Affidavit of 7 February 2007 will not change the outcome of petitioner’s case.

It is a well-settled rule that a client is bound by his counsel’s conduct,

negligence, and mistakes in handling the case, and the client cannot be heard
to complain that the result might have been different had his lawyer
proceeded differently.31 The only exceptions to the general rule -- that a client
is bound by the mistakes of his counsel -- which this Court finds acceptable
are when the reckless or gross negligence of counsel deprives the client of
due process of law, or when the application of the rule results in the outright
deprivation of one’s property through a technicality.32 These exceptions are
not attendant in this case.

The Court cannot sustain petitioner’s averment that his counsel was grossly
negligent in deciding against the presentation of the Affidavit of 7 February
2007 during the proceedings before the COMELEC. Mistakes of attorneys as
to the competency of a witness; the sufficiency, relevancy or irrelevancy of
certain evidence; the proper defense or the burden of proof, failure to
introduce evidence, to summon witnesses and to argue the case -- unless
they prejudice the client and prevent him from properly presenting his case --
do not constitute gross incompetence or negligence, such that clients may no
longer be bound by the acts of their counsel.33

Also belying petitioner’s claim that his former counsel was grossly negligent
was the fact that petitioner continuously used his former counsel’s theory of
the case. Even when the COMELEC already rendered an adverse decision,
he persistently argues even to this Court that his oaths of allegiance to the
Republic of the Philippines before the Los Angeles PCG and in his Certificate
of Candidacy amount to the renunciation of foreign citizenship which the law
requires. Having asserted the same defense in the instant Petition, petitioner
only demonstrates his continued reliance on and complete belief in the
position taken by his former counsel, despite the former’s incongruous
allegations that the latter has been grossly negligent.

Petitioner himself is also guilty of negligence. If indeed he believed that his

counsel was inept, petitioner should have promptly taken action, such as
discharging his counsel earlier and/or insisting on the submission of his
Affidavit of 7 February 2007 to the COMELEC, instead of waiting until a
decision was rendered disqualifying him and a resolution issued dismissing
his motion for reconsideration; and, thereupon, he could have heaped the
blame on his former counsel. Petitioner could not be so easily allowed to
escape the consequences of his former counsel’s acts, because, otherwise, it
would render court proceedings indefinite, tentative, and subject to reopening
at any time by the mere subterfuge of replacing counsel. 34

Petitioner cites De Guzman v. Sandiganbayan,35 where therein petitioner De

Guzman was unable to present a piece of evidence because his lawyer
proceeded to file a demurrer to evidence, despite the Sandiganbayan’s denial
of his prior leave to do so. The wrongful insistence of the lawyer in filing a
demurrer to evidence had totally deprived De Guzman of any chance to
present documentary evidence in his defense. This was certainly not the case
in the Petition at bar.

Herein, petitioner was in no way deprived of due process. His counsel actively
defended his suit by attending the hearings, filing the pleadings, and
presenting evidence on petitioner’s behalf. Moreover, petitioner’s cause was
not defeated by a mere technicality, but because of a mistaken reliance on a
doctrine which is not applicable to his case. A case lost due to an untenable
legal position does not justify a deviation from the rule that clients are bound
by the acts and mistakes of their counsel.36

Petitioner also makes much of the fact that he received the highest number of
votes for the position of Vice-Mayor of Catarman during the 2007 local
elections. The fact that a candidate, who must comply with the election
requirements applicable to dual citizens and failed to do so, received the
highest number of votes for an elective position does not dispense with, or
amount to a waiver of, such requirement.37 The will of the people as
expressed through the ballot cannot cure the vice of ineligibility, especially if
they mistakenly believed that the candidate was qualified. The rules on
citizenship qualifications of a candidate must be strictly applied. If a person
seeks to serve the Republic of the Philippines, he must owe his loyalty to this
country only, abjuring and renouncing all fealty and fidelity to any other
state.38 The application of the constitutional and statutory provisions on
disqualification is not a matter of popularity.39

WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28

September 2007 of the COMELEC en banc in SPA No. 07-361, affirming the
Resolution dated 12 June 2007 of the COMELEC Second Division,
is AFFIRMED. Petitioner is DISQUALIFIED to run for the position of Vice-
Mayor of Catarman, Camiguin in the 14 May 2007 National and Local
Elections, and if proclaimed, cannot assume the Office of Vice-Mayor of said
municipality by virtue of such disqualification. Costs against petitioner.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES *TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice
 *ARTURO D. BRION
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified

that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

* On official leave.

** On leave.
1
Per Curiam, with Chairman Benjamin S. Abalos, Sr., Commissioners
Resurreccion Z. Borra, Florentino A. Tuason, Jr., Romeo A. Brawner,
Rene V. Sarmiento, and Nicodemo T. Ferrer. Rollo, pp. 36-39.
2
Penned by Presiding Commissioner Florentino A. Tuason, Jr with
Commissioners Rene V. Sarmiento and Nicodemo T. Ferrer,
concurring; Rollo, pp. 31-35.
3
Id. at 9.
4
Id. at 94.
5
Id. at 95.
6
Id. at 50.
7
Id. at 59.
8
Id. at 40-42.
9
Id. at 46-49.
10
Id. at 61-65.
11
Id. at 31-35.
12
392 Phil. 327 (2000).
13
367 Phil. 132 (1999).
14
Rollo, p. 35.
15
Id. at 74.
16
Id. at 36-39.
17
Id. at 96.
18
Id. at 11-13.
19
Id. at 188.
20
Lopez v. Commission on Elections, G.R. No. 182701, 23 July 2008.
21
Supra note 12 at 340.
22
Supra note 13 at 152-153.
23
Even if Republic Act No. 9225 had not been enacted, petitioner would
still not be able to rely on Valles and Mercado. The ruling in those cases
was that when a person who was merely a dual citizen, not a person
with dual allegiance, files a certificate of candidacy, this already
constitutes as a renunciation of foreign citizenship. In these cases, this
Court made an important distinction between "dual citizenship" and
"dual allegiance." Dual citizenship is the result of the application of the
different laws of two states, whereby a person is simultaneously
considered a national by the said states. Dual allegiance, on the other
hand, arises when a person simultaneously owes her loyalty to two or
more states by undertaking a positive act. While dual citizenship is
involuntary, dual allegiance is the result of an individual’s volition. Thus,
Article IV, Section 5 of the Constitution provides that: "Dual allegiance of
citizens is inimical to national interest and shall be dealt with by law." In
both Valles and Mercado, the candidates whose qualifications are being
challenged were dual citizens: They became citizens of another state
without performing another act–both candidates, who have Filipino
parents, became citizens of the foreign state where they were born
under the principal of jus soli and had not taken an oath of allegiance to
said foreign state. In contrast, herein petitioner has dual allegiance
since he acquired his US citizenship through the positive and voluntary
act of swearing allegiance to the US.

Other factual considerations need to be pointed out. It is significant to

note that in Valles, therein private respondent Lopez executed a
Declaration of Renunciation of Australian Citizenship which,
consequently, led to the cancellation of her Australian passport, even
before she filed her Certificate of Candidacy. The issue in that case was
Lopez’s reacquisition of her citizenship, not her failure to renounce her
foreign citizenship. (Valles v. Commission on Elections, supra note 12 at
340-341.)

In Mercado, the Court took special notice of the fact that "private
respondent’s oath of allegiance to the Philippines, when considered with
the fact that he has spent his youth and adulthood, received his
education, practiced his profession as an artist, and taken part in past
elections in this country, leaves no doubt of his election of Philippine
citizenship." (Mercado v. Manzano, supra note 13 at 153.)

Herein petitioner’s situation is markedly different since he actively

elected to acquire a foreign citizenship and re-acquired his Filipino
citizenship only a year before he filed his candidacy for a local elective
position.
24
Supra note 20.
25
Rollo, p. 96.
26
Tan and Commission on Elections, G.R. Nos. 166143-47 and
166891, 20 November 2006, 507 SCRA 352, 373-374; Vda de
Gualberto v. Go, G.R. No. 139843, 21 July 2005, 463 SCRA 671, 678;
Del Rosario v. Bonga, 402 Phil. 949, 957-958 (2001).
27
Villanueva v. Court of Appeals, G.R. No. 143286, 14 April 2004, 427
SCRA 439, 448.
28
Filipinas Systems, Inc. v. National Labor Relations Commission, 463
Phil. 813, 819 (2003)
29
Manongsong v. Estimo, 452 Phil. 862, 879-880 (2003).
30
Cansino v. Court of Appeals, 456 Phil. 686, 693 (2003).
31
People v. Kawasa, 327 Phil. 928, 933 (1996).
32
R Transport Corporation v. Philippine Hawk Transport Corporation,
G.R. No. 155737, 19 October 2005, 473 SCRA 342, 347-348; Trust
International Paper Corporation v. Pelaez, G.R. No. 164871, 22 August
2006, 499 SCRA 552, 563.
33
Andrada v. People, G.R. No. 135222, 4 March 2005, 452 SCRA 685,
693-694; Custodio v. Sandiganbayan, G.R. Nos. 96027-28, 8 March
2005, 453 SCRA 24, 45; People v. Mercado, 445 Phil. 813, 829 (2003);
Tesoro v. Court of Appeals, 153 Phil. 580, 588-589 (1973); United
States v. Umali, 15 Phil. 33, 35 (1910).
34
People v. Kawasa, supra note 31 at 934-935.
35
326 Phil. 184 (1996).
36
Espinosa v. Court of Appeals, G.R. No.128686, 28 May 2004, 430
SCRA 96, 105-106.
37
Labo, Jr. v. Commission on Elections, G.R. Nos. 105111 and 105384,
3 July 1992, 211 SCRA 297, 308.
38
Frivaldo v. Commission on Elections, G.R. No. 87193, 23 June 1989,
174 SCRA 245, 255.
39
Lopez v. Commission on Elections, supra note 20.
G.R. No. 210164 August 18, 2015

ROMMEL C. ARNADO, Petitioner,

vs.
COMMISSION ON ELECTIONS and FLORANTE CAPITAN, Respondents,

CONCURRING OPINION

SERENO, CJ:

In Moy Ya Lim Yao v. Commissioner of Immigration, 1 we emphasized the variable nature of a

person's citizenship, which cannot be determined with finality or become the basis of rules that can
be applied to any and all proceedings thereafter. We said:

Everytime the citizenship of a person is material or indispensable in a judicial or administrative case,

whatever the corresponding court or administrative authority decides therein as to such citizenship is
generally not considered as res adjudicata, hence it has to be threshed out again and again as the
occasion may demand. 2

In election contests, this pronouncement gains significance, as elective local officials are
constitutionally allowed to run and serve for three consecutive terms. 3 While citizenship is a
continuing requirement that must be possessed not only at the time of election or assumption of
office, but also during the entire tenure of the official,4 it is not a continuing disqualification to run for
and hold public office.5

As such, each case involving the question of an elective official's citizenship must be treated anew in
accordance with the surrounding relevant facts and applicable laws.

In this regard, I agree with some of the statements of J Brion in his Dissenting Opinion. Indeed, the
Court's ruling in Maquiling v. COMELEc6 went only so far as to determine whether Rommel C.
Arnado (Amado) was qualified to run for public office in the 2010 elections. It did not operate as, nor
was it intended to be, a final determination of Amado's citizenship that would forever derail his career
as a public official.

In Maquiling, we reiterated that natural-born citizens of the Philippines who have lost their citizenship
by reason of their naturalization as citizens of a foreign country may qualify to run for public office
upon taking the Oath of Allegiance 7 and making a sworn renunciation of their foreign
citizenship.8 Arnado subjected his citizenship to attack when he continued to use his United States
(US) passport to travel in and out of the country despite previously renouncing his US citizenship.
The Court ruled that his use of his US passport nullified the effect of his previous renunciation of US
citizenship. While he did not lose his Philippine citizenship in the process, he reverted to his status
as a dual citizen and remained as such at the time that he filed his Certificate of Candidacy for the
position of mayor of Kauswagan, Lanao del Norte in the 2010 elections. Under Section 40(d) of the
Local Government Code, those with dual citizenship are disqualified from running for any elective
local position.

Considering that the Court had pinpointed the defect in Amado's oath of renunciation, the simple act
of taking the oath anew would have been enough compliance with the requirement of the law.

The Decision found that from the time Amado used his US passport to travel in and out of the
country up to the filing of his Certificate of Candidacy for the succeeding elections in 2013, there had
been no change in his circumstances. 9 He still had not made a sworn renunciation of his US
citizenship. Thus, the ruling in Maquiling still applies: that Arnado had dual citizenship when he filed
for his candidacy on 1 October 2012.

It did not matter that Maquiling was promulgated months after Arnado had filed for candidacy. Since
he was not totally unaware that the use of his US passport might have adverse consequences on his
candidacy for the 2013 elections, the Decision concludes that he should have been prudent enough
to remedy whatever defect there might have been in his citizenship.10

Even J. Brion concedes that Amado could have been more circumspect in order to secure his
qualification to run for public office. 11 However, it is insisted that the members of this Court should
remove the present case from the shadow of Maquiling and arrive at its resolution based merely on
the attendant factual and legal considerations specific to it.12

It cannot be denied that by virtue of its being a decision of the Court that joins the country's body of
laws as jurisprudence, Maquiling serves as a "legal consideration" in the resolution of the present
case. Maquiling' s application cannot be helped, especially since the Decision therein hinged not
only on relevant laws, but largely on the facts then presented before the Court. Thus, while the legal
conclusion in Maquiling was not a final determination of Amado's citizenship - as it applied only for
purposes of the 2010 elections - the facts on which its legal conclusion was founded cannot be
totally ignored.

A person's citizenship may be "threshed out again and again"13 in every proceeding as long as it
becomes relevant and necessary. Except for some clearly unmeritorious cases, it is always a good
idea to decide on the merits, especially in election controversies in which the law is sometimes
placed at odds with the will of the people. At the same time, the Court puts a premium on economy,
and where previous declarations of one's citizenship become pertinent, those cases may be used as
a take-off point if only to emphasize the differences and similarities, as well as the measures that
were taken in the interim.

One point of contention between the Decision and the Dissenting Opinion is the finding that Arnado
used his US passport for his travels in and out of the country on 12 January 2010 and 23 March
2010.

One point of contention between the Decision and the Dissenting Opinion is the finding that Arnado
used his US passport for his travels in and out of the country on 12 January 2010 and 23 March
2010.

Maquiling indeed made a finding that Arnado used his US passport for travel on those dates. In the
Court Resolution dated 2 July 2013, we said:

Well-settled is the rule that findings of fact of administrative bodies will not be interfered with by the
courts in the absence of grave abuse of discretion on the part of said agencies, or unless the
aforementioned findings are not supported by substantial evidence. They are accorded not only
1âwphi1

great respect but even finality, and are binding upon this Court, unless it is shown that the
administrative body had arbitrarily disregarded or misapprehended evidence before it to such an
extent as to compel a contrary conclusion had such evidence been properly appreciated.

Nevertheless, it must be emphasized that COMELEC First

Division found that Arnado used his U.S. Passport at least six times after he renounced his
American citizenship. This was debunked by the COMELEC En Banc, which found that Arnado only
used his U.S. passport four times, and which agreed with Amado's claim that he only used his U.S.
passport on those occasions because his Philippine passport was not yet issued. The COMELEC En
Banc argued that Amado was able to prove that he used his Philippine passport for his travels on the
following dates: 12 January 2010, 31 January 2010, 31 March 2010, 16 April 2010, 20 May 2010,
and 4 June 2010.

None of these dates coincide with the two other dates indicated in the certification issued by the
Bureau of Immigration showing that on 21 January 2010 and on 23 March 2010, Arnado arrived in
the Philippines using his U.S. Passport No. 057782700 which also indicated therein that his
nationality is USA-American. Adding these two travel dates to the travel record provided by the
Bureau of Immigration showing that Arnado also presented his U.S. passport four times (upon
departure on 14 April 2009, upon arrival on 25 June 2009, upon departure on 29 July 2009 and upon
arrival on 24 November 2009), these incidents sum up to six.

The COMELEC En Banc concluded that "the use of the US passport was because to his knowledge,
his Philippine passport was not yet issued to him for his use." This conclusion, however, is not
supported by the facts. Arnado claims that his Philippine passport was issued on 18 June 2009. The
records show that he continued to use his U.S. passport even after he already received his
Philippine passport. Arnado's travel records show that he presented his U.S. passport on 24
November 2009, on 21 January 2010, and on 23 March 2010. These facts were never refuted by
Arnado.

Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the facts that the use
of the U.S. passport was discontinued when Amado obtained his Philippine passport.14 (Emphases
supplied)

It is important to clarify that the certification from the Bureau of Immigration indicated that Amado
arrived in the country using his US passport on 12 January 2010 and 23 March 2010.15 The Court
gave full credence to the certification, not only because it carried with it the presumption of regularity,
but more important, Arnado never bothered to refute the contents thereof.

On the basis of this finding, the Court rejected the claim that Amado's use of his US passport several
times were mere isolated acts that were done only because he was not yet issued his Philippine
passport.16

To my mind, this is the turning point of Maquiling that regrettably still applies in this case: that
whatever professions of faith and allegiance to the Republic that Amado claims when his citizenship
is in question, the fact remains that during the instances that he used his US passport despite having
a Philippine passport in his possession, those same professions became hollow. And, that up to the
filing of Amado's Certificate of Candidacy for the 2013 elections, he failed to remedy the fatal blow
that such repeated use of his US passport dealt on his electoral qualifications.

I therefore concur with the DISMISSAL of the PETITION.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes
1
148-B Phil. 773 (1971).

2
Id. at 855.

3
CONSTITUTION, Article X, Section 8.

4
Republic v. De la Rosa, G.R. Nos. 104654, 105715 & 105735, 6 June 1994, 232 SCRA
785; Labo. Jr. v. COMELEC, 257 Phil. 1 (1989); Frivaldo v. COMELEC, G.R. No. 87193, 23
June 1989, 174 SCRA 245.

5
Frivaldo v. COMELEC, 327 Phil. 521 (1996).

6
G.R. No. 195649, 16 April 2013, 696 SCRA 420.

7
Section 3 of Republic Act No. 9225 (Citizenship Retention and Re-acquisition Act of2003)
states:

Section 3. Retention of Philippine Citizenship. - Any provision of law to the contrary

notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are
hereby deemed to have re-acquired Philippine citizenship upon taking the following
oath of allegiance to the Republic:

"I , solemnly swear (or affirm) that .I will support and defend the Constitution
of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines, and 1
hereby declare that I recognize and accept the supreme authority of the
Philippines and will maintain true faith and allegiance thereto; and that I
impose this obligation upon myself voluntarily without mental reservation or
purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.

8
Section 5(2) of Republic Act No. 9225 provides:

Section 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:

xxxx

(2) Those seeking elective public office in the Philippines shall meet the qualifications
for holding such public office as required by the Constitution and existing laws and, at
the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to
administer an oath;

9
Decision, G.R. No. 210164, p. 14.
 10
Id. at 15.

11
Dissenting Opinion of J Brion, G.R. No. 210164, p. 22.

12
Id. at 2.

13
Moy Ya Lim Yao v. Commissioner of Immigration, supra.

14
Maquiling v. COMELEC, G.R. No. 195649, 2 July 2013, 700 SCRA 367, 377-378.

15
Maquiling v. COMELEC, supra note 6. The certification from the Bureau of Immigration
dated 23 April 20 I 0 certifies that the name "Amado, Rommel Cagoco" appears in the
Computer Database/Passenger Manifest/IBM Listing on file as of 21 April 20 l 0 with the
following pertinent travel records:

DATE of Arrival : 01/12/2010

NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE of Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700

16
Supra note 14.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

BRION, J.:

The present certiorari petition,1filed under Rule 64 in relation with Rule 65 of the Rules of Court,
involves the disqualification of the present petitioner, Rommel C. Amado (Arnado), in the May 13,
2013 National and Local Elections (May 2013 Elections).

This case traces its roots to the earlier disqualification case [docketed as SPA No . .J0-109 (DC)]
filed against Amado in relation with the May 10, 2010 Elections, that led to the Court's decision in
Maquiling v. Comelec disqualifying Arnado.2To some extent, the present case is factually linked to
the earlier disqualification case.

As in Maquiling, Amado and his qualification to run for public office are at the center of the present
petition. Private re8pondent Florante Capitan seeks to strengthen the linkage with the earlier
Maquiling case by adopting the Maquiling positions and considering the present case as a seamless
continuation of Maquiling.
Despite some commonalities, the present disqualification case, however, is separate and
substantively distinct from the Maquiling disqualification case. The present case involves an election
period (2013) separate and distinct from the election period covered by the Maquiling ruling (2010).
The factual circumstances and consequent legal considerations also vary, as will be explained
below, so that the present case need not necessarily follow the governing ruling in Maquiling.

Thus, at the outset, I invite the Court: to keep an open mind and remove any initial impression that
the present case is a re-run of Maquiling; to recognize that at some point, the present case diverges
from and must be viewed independently of Maquiling; and to resolve it from the perspective solely of
the attendant factual and legal considerations specific to it.

The Court must not also forget that this is an election case where the electorate has its own
separate interest to protect. This is an interest that the Court must not ignore when the issues posed
carry the potential of setting aside the electorate's expressed choice.

Notably, the present controversy involves .a candidate whose disqualification (to run for elective
office) has twice been sought based on the same cited facts and grounds, but who nevertheless has
twice been elected by a clear and overwhelming majority of the voters - in the May 2010 and May
2013 Elections. In 2013, he garnered 84% of the votes of the people of Kauswagan.

This clear and undeniably overwhelming voice of the electorate, to my mind, renders it necessary for
the Court to consider and apply deeper democratic principles.3 The circumstances of the present
controversy call for this kind of consideration, particularly when the electorate's already limited
democratic decision making process runs the risk of being negated for no clear and conclusive
reason, as discussed below.

To disregard the electorate's voice once can perhaps be excused by invoking the rule of law; to
ignore the people's voice a second time can only be justified by clear reasons from this Court that
the people can readily understand.

I submit this Dissenting Opinion to object to the ponencia's conclusion that Arnado is
disqualified from running in the May 2013 Elections and that his proclamation as elected
Mayor of Kauswagan, Lanao del Norte, should now be set aside.

I specifically find the ponencia 's conclusions grossly erroneous and tainted with grave abuse of
discretion based on the following considerations:

(1) Amado became a "pure" Philippine citizen on April 3, 2009, after he took his oath of
allegiance and executed his affidavit of renunciation. That he was subsequently deemed to
have recanted his renunciation is unfortunate, but even the Maquiling ruling recognizes that
for some eleven (11) days (i.e., from April 3 to 14, 2009), he was qualified to run for public
office because he was a "pure" Filipino.

Arnado more than reconfirmed and regained this status and was qualified to run for public
office in the May 2013 Elections based on his persistent assertions of sole allegiance to the
Republic and his repeated renunciation of his US citizenship.

a. Separately from the April 3, 2009 Affidavit of Renunciation that Maquiling said
Amado recanted, Arnado executed on May 9, 2013, another Affidavit of Renunciation
affirming the terms of his April 3, 2009 Affidavit and thus cured any defect in his
qualification to run in the May 2013 Elections.
(2) The legal consequences of the Maquiling ruling is limited to Arado's qualification for
public office in the May 2010 elections.

a. The intervening 2010 Maquiling disqualification ruling did not and could not have
invalidated Arnado's status as a "pure" Philippine citizen who was qualified to run for
public office after having complied with the RA No. 9225 requirements in the May
2013 Elections.

(3) The Comelec gravely abused its discretion in ruling that the May 9, 2013 Confirmation of
the Oath of Affirmation was filed out of time.

a. The Comelec grossly failed to consider (i) the circumstances of the filing of the
October 1, 2012 Certificate of Candidacy (CoC), and (ii) the circumstances and the
dynamics between the 2010 Maquiling case and ruling, and the present 2013
disqualification case, in terms of the retroactive application of the Maquiling ruling.

b. When Amado filed his CoC on October 1, 2012 (for the 2013 Elections), the
prevailing Comelec en bane ruling [in its February 2, 2011 resolution in SPA No. 10-
109 (DC)] was that he was not disqualified to run for elective public office; hence,
Amado did not need to execute another affidavit of renunciation.

c. Based solely on the Maquiling Decision (that pertained to Arnado's disqualification

for the 2010 elections), the Comelec disqualified Arnado for the May 2013 elections
because his October 1, 2012 CoC was not supported by any Affidavit of
Renunciation (since Maquiling considered his April 3, 2009 Affidavit of Renunciation
for the 2010 elections effectively recanted). This Comelec ruling disregards the
unusual consequences of the April 3, 2009 Affidavit and the unique circumstances
under which the October 1, 2012 CoC was filed.

d. Since the Comelec did not accept the Affidavit of Renunciation that Arnado filed on
May 9, 2013 (for the 2013 Elections) in the light of the 2010 Maquiling ruling, he was
placed in an impossible situation of being disqualified in 2013 for a ruling applicable
to the 2010 elections, without being given the opportunity to submit his compliance
for the May 2013 elections.

e. Notably, his May 9, 2013 Affidavit of Renunciation, submitted to comply with his
May 2013 candidacy, was rejected because it should have been filed on October 1,
2012 (i.e., when he filed his CoC for the May 2013 elections). If the Maquiling ruling,
made on April 16, 2013, was made to retroactively apply to October 1, 2012, so
should the opportunity to comply be similarly made retroactive. To the extent he was
denied this opportunity is grave abuse of discretion.

(4) Af any rate, all doubts should be resolved in favour of Arnado's qualification:

a. Arnado' s unequivocal acts and show of allegiance to the Republic and

renunciation of other citizenships, taken together, should have resolved all doubts in
favor of his qualification;

b. the mandate of the people of Kauswagan that twice elected Amado as their Mayor
should be respected and upheld.
 I. Roots of the Present Petition

A. Factual Background

For a· fuller understanding of the present disqualification case, I reiterate below the important
antecedent facts.

Arnado is a natural-born Filipino citizen who lost his Filipino citizenship after becoming a naturalized
citizen of the United States of America (US.) in 1985.

In 2003, Congress enacted Republic Act (RA) No. 9225 (Citizenship Retention and Re-Acquisition
Act of 2003).4

Arnado opted to re-acquire his Philippine citizenship pursuant to RA No. 9225 and soon filed the
required application before the Philippine Consul General in San Francisco, U.S.A. On July 10,
2008, Arnado took his Oath of Allegiance to the Republic of the Philippines; the Approval of his
Citizenship retention and re-acquisition was issued on the same date.

On April 3, 2009, Arnado executed an Affidavit of Renunciation of his foreign citizenship

(interchangeably referred to, from here on, as April 3, 2009 Affidavit of Renunciation or 2009 express
renunciation).

On April 14, 2009, Arnado left the country for the US using his US passport - US passport (No.
057782700) - which identified his nationality as "USA-American." He returned to the country on June
25, 2009, using the same US passport. He again left for the US on July 29, 2009, and returned to
the country on November 24, 2009, still using his US passport.

Unknown to Amado, however, the Philippine Consulate General in San Francisco, USA, had
approved and issued in his favor a Philippine Passport (No. XX 3979162) on June 18, 2009.5 He only
received this Philippine passport three months later.6

From then on, he used his Philippine passport in his travels on the following dates: December 11,
2009 (departure); January 12, 2010 (arrival); January 31, 2010 (departure); March 31, 2010 (arrival);
April 11, 2010 (departure); April 16, 2010 (arrival); May 20, 2010 (departure); and June 4, 2010
(arrival).7

B. The Maquiling Case and its Incidents

On November 30, 2009, Amado filed his CoC for the mayoralty post of Kauswagan, Lanao del Norte,
for the May 2010 Elections. On the same day, he executed another Affidavit of Renunciation with
Oath of Allegiance.8

Notably, this Affidavit of Renunciation came after his travel using an American passport.

Linog C. Balua, another mayoralty candidate, filed with the Comelec a petition to disqualify Amado
and/or to cancel his CoC (2010 Disqualification case) on the ground that Arnado remained a US
citizen: he continued to use his US passport for entry to and exit from the Philippines after executing
the April 3, 2009 Affidavit of Renunciation. Balua's petition was docketed as SPA No. 10-109 (DC).

Arnado was proclaimed the winning candidate in the May 2010 Elections.
In a resolution dated February 2, 2011, the Comelec En Banc ruled [in SPA No. 10-109 (DC)) that
Arnado's use of his US passport, subsequent to his 2009 Affidavit of Renunciation, did not have the
effect of reverting him to his status as a dual citizen. The Comelec En Banc found believable and
plausible Arnado's explanation that he continued to use his US passport because he only knew of
and received his Philippine passport three months after it was issued on June 18, 2009. As soon as
he received his Philippine passport, he used it in his subsequent travels abroad.

The 2010 disqualification case eventually reached this Court via the petition for certiorari filed by
Maquiling; the case was. docketed as GR No. 195649 entitled Maquiling v. Comelec.

a. The Court's Maquiling Decision.

In its April 16, 2013 Decision, the Court annulled and set aside the Comelec En Banc 's February 2,
2011 Resolution; disqualified Amado from running for the position of Mayor; and declared Maquiling
the duly elected mayor of Kauswagan, Lanao del Norte, in the May 2010 Elections. The Court ruled
that by his subsequent use of his US passport, Arnado effectively disavowed or recanted his April 3,
2009 Affidavit of Renunciation.

In ruling on the case, the Court significantly acknowledged that:

i. The "act of using a foreign passport does not divest Arnado of his Filipino
citizenship, which he re-acquired by repatriation. By representing himself as an
American citizen, however, Amado voluntarily and effectively reverted to his earlier
status as a dual citizen. Such reversion was not retroactive; it took place the instant
Arnado represented himself as an American citizen by using his US passport. "

ii. "In effect, Arnado was solely and exclusively a Filipino citizen only for a period of
eleven days, or from April 3, 2009, until 14 April 2009, on which date he first used his
American passport after renouncing his American citizenship."10

C. The Present Disqualification Case

On October l, 2012, and while the Maquiling case was still pending before this Court (so that the
existing standing rule was the Comelec ruling that he was qualified to be a candidate), Arnado filed
his CoC11 for the same mayoralty post for the May 2013 Elections. Thus, Arnado saw no need to
undertake another Renunciation.

Respondent Florante Capitan also filed his CoC12 for the same position.

On April 16, 2013, the Court issued its Decision in Maquiling v. Comelec, disqualifying Arnado for
the May 2010 Elections.

Apparently in response to the Maquiling ruling, Arnado executed on May 9, 2013, an Oath of
Allegiance and Oath of Renunciation affirming the terms of his April 3, 2009 Affidavit of
Renunciation(herein referred to as 2013 Affidavit).13Arnado undertook the required acts as soon as
he was aware that they had to be done to perfect his May 2013 candidacy.

On May 10, 2013, Capitan filed a petition to disqualify14 Arnado from running for the Kauswagan
mayoralty post and/or to cancel his CoC (2013 Disqualification case) based on the Court's Maquiling
ruling. The case was docketed as SPA No. 13-309 (DC) and was raffled to the Comelec
Second Division (Second Division).15

On May 14, 2013, during the pendency of the 2013 Disqualification case before. the Second
Division, Arnado was proclaimed the duly elected Mayor of Lanao del Norte in the May 2013
Elections.16

Capitan responded to the proclamation by filing a petition to nullify Arnado's proclamation, arguing
that pursuant to the Maquiling ruling (which declared Amado disqualified from running for any local
elective office), Arnado's proclamation was void and carried no legal effect.

In a resolution dated July 2, 2013, the Court denied Arnado's motion for reconsideration of the April
16, 2013 Maquiling Decision.

II. The Proceedings before the Comelec

A. Comelec Second Division Ruling

In its resolution dated September 6, 2013, in SP A No. 13-309(DC), the Comelec Second Division
disqualified Amado from running in the May 2013 Elections.

The Second Division declared that at the time he filed his CoC on October 1, 2012, Arnado still failed
to comply with RA No. 9225's requirement of making a personal and sworn renunciation of any and
all foreign citizenship, as his April 3, 2009 Affidavit of Renunciation had been deemed withdrawn or
recalled pursuant to Maquiling. His 2013 Affidavit did not rectify this failure as this subsequent
affidavit should have been executed on or before the filing of his CoC on October 1, 2012

B. The Comelec En Banc Ruling

In its December 9, 2013 resolution, the Comelec En Banc fully affirmed the Second Division's ruling;
annulled Arnado's proclamation; and declared Capitan the duly elected mayor of Kauswagan..

III. The Issues

The issues raised for the Court's consideration are:

A. Whether the Comelec En Banc and the Second Division violated procedural due process
and committed grave abuse of discretion in failing to dismiss the petitions filed by Capitan for
forum shopping and/or late filing;

B. Whether the Comelec En Banc violated due process and committed grave abuse of
discretion by allowing . Commissioner Elias Yusoph to review the decision he wrote for the
Second Division;

C. Whether the Comelec committed grave abuse of discretion in disenfranchising 84o/o of

the voters ofKauswagan in the May 2013 elections; and

D. Whether the Comelec committed grave abuse of discretion in disqualifying Arnado who
had fully complied with the requirements of RA No. 9225 before the filing of his CoC on
October 1, 2012.

IV. Refutation of the Ponencia

A. Re-acquisition of Philippine citizenship
under RA No. 9225; purposes and legal
effect of the oath of allegiance and oath
of renunciation

RA No. 9225 was enacted to allow natural-born Filipino citizens who lost their Philippine citizenship
through naturalization in a foreign country, to expeditiously re-acquire Philippine citizenship. 17 It is a
unique mode of re-acquiring Philippine citizenship and is a far departure from the citizenship re-
acquisition procedure under Commonwealth Act (CA) No. 63,18 the law in place before RA No. 9225
was enacted.

Under CA No. 63, Philippine citizenship may be re-acquired by: (1) naturalization; (2) repatriation of
deserters of the Army, Navy, or Air Corps, or of a woman who has lost her citizenship by reason of
marriage to an alien after the termination of her marital status; and (3) direct act of the National
Assembly.19

Notably, re-acquisition of Philippine Citizenship under the first mode (i.e., by naturalization) involves
the more stringent procedure laid down in CA No. 473.20 The reacquisition of Philippine citizenship
under the second mode (i.e., by repatriation), on the other hand, provides for an easier procedure as
it requires only the taking of the oath of allegiance to the Republic of the Philippines and registration
in the proper civil registry; it applies, however, only to the specific group of persons enumerated
therein.

Under the procedure currently in place under RA No. 9225, the re-acquisition of Philippine
citizenship requires only the taking of an oath of allegiance to the Republic of the Philippines in a
manner similar to the second mode under CA No. 63. But, RA No. 9225 provides for a deeper effect
by declaring it a State policy that under its terms "all Philippine citizens of another country shall be
deemed not to have lost their Philippine citizenship"21 under the conditions provided therein.

The full implication of the effects of RA No. 9225 can fully be appreciated by considering Section 3 of
the law, which reads:

Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding,
natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby
deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the
Republic:

"'I , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the
Philippines; and I hereby declare that I recognize and accept the supreme authority of the
Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon
myself voluntarily without mental reservation or purpose of evasion." [emphases supplied]

By its express terms, this oath is one of allegiance that recognizes the "supreme authority" of the
Philippines and the obligation to "maintain true faith and allegiance thereto."

These terms, while seemingly allowing dual citizenship for natural-born Filipino citizens who have
lost their Philippine citizenship by reason of their naturalization as citizens in a foreign country,22 carry
the implicit effect of renouncing their foreign citizenship and allegiance because of the renewed
allegiance that is accorded to the supreme authority of the Republic.23
In effect, the problem of dual allegiance created by dual citizenship is transferred from the
Philippines to the foreign country. Since the latest oath that the person takes is one of allegiance to
the Republic, whatever treatment the foreign country may have on his or her status is a matter
outside the concern and competence of the Philippine government!.24

The congressional exchanges on dual citizenship and the potential problem of dual allegiance
(which under the Constitution is inimical to public interest), attest to this interpretation as these
exchanges reconciled the possession of dual citizenship and the dual allegiance that the
Constitution states to "be inimical to public interest."

Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist - the retention
of foreign citizenship, and the reacquisition of Philippine citizenship. In this case, he observed that
there are two citizenships and therefore, two allegiances. He pointed out that under the Constitution,
dual allegiance is inimical to public interest. He thereafter asked whether with the creation of dual
allegiance by reason of retention of foreign citizenship and the reacquisition of Philippine citizenship,
there will now be a violation of the Constitution ....

Rep. Locsin underscored that the measure does not seek to address the constitutional injunction on
dual allegiance as inimical to public interest. He said that the proposed law aims to facilitate the
reacquisition of Philippine citizenship by speedy means. However, he said that in one sense, it
addresses the problem of dual citizenship by requiring the taking of an oath. He explained that the
problem of dual citizenship is transferred from the Philippines to the foreign country because the
latest oath that will be taken by the former Filipino is one of allegiance to the Philippines and not to
the United States, as the case may be. He added that this is a matter which the Philippine
government will have no concern and competence over.

Rep. Dilangalen asked why this will no longer be the country's concern, when dual allegiance is
involved.

Rep. Locsin clarified that this was precisely his objection to the original version of the bill, which did
not require an oath of allegiance. Since the measure now requires this oath, the problem of dual
allegiance is transferred from the Philippines to the foreign country concerned, he explained.

Rep. Dilangalen asked whether in the particular case, the person did not denounce his foreign
citizenship and therefore still owes allegiance to the foreign government, and at the same time, owes
his allegiance to the Philippine government, such that there is now a case of dual citizenship and
dual allegiance.

Rep. Locsin clarified that by swearing to the supreme authority of the Republic, the person implicitly
renounces his foreign citizenship. However, he said that this is not a matter that he wishes to
address in Congress because he is not a member of a foreign parliament but a Member of the
House.

Rep. Locsin replied that it is imperative that those who have dual allegiance contrary to national
interest should be dealt with by law. However, he said that the dual allegiance problem is not
addressed in the bill. He then cited the Declaration of Policy in the bill which states that "It is hereby
declared the policy of the State that all citizens who become citizens of another country shall be
deemed not to have lost their Philippine citizenship under the conditions of this Act." He stressed
that what the bill does is recognize Philippine citizenship but says nothing about the other
citizenship.
Rep. Locsin further pointed out that the problem of dual allegiance is created wherein a natural-born
citizen of the Philippines takes an oath of allegiance to another country and in that oath says that he
abjures and absolutely renounces all allegiance to his country of origin and swears allegiance to that
foreign country. The original Bill had left it at this stage, he explained. In the present measure, he
clarified, a person is required to take an oath and the last he utters is one of allegiance to the
country. He then said that the problem of dual allegiance is no longer the problem of the Philippines
but of the other foreign country. [emphases supplied]

Jurisprudence confirms this interpretation of RA No. 9225 in AASJS v. Hon. Datumanong25 when the
Court pointedly declared:

By swearing to the supreme authority of the Republic, the person implicitly renounces his foreign
citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed clear out of the problem of dual
allegiance and shifted the burden of confronting the issue of whether OF not there is dual allegiance
to the concerned foreign country. What happens to the other citizenship was not made a concern of
Rep. Act No. 9225.26 [emphasis supplied]

The oath of allegiance taken under RA No. 9225 entitles a person to enjoy full civil and political
rights that include the right to participate, directly or indirectly, in the establishment or administration
of the government. 27 He or she may now vote.

To be voted upon to an elective office, however, a natural-born Filipino citizen who has implicitly
renounced foreign allegiance when he or she swears allegiance to the Republic under RA No. 9225
must still make his or her previous implicit renunciation "express." In the words of the law, he must
"make a personal and sworn renunciation of any and all foreign citizenship." [Section 5(2) of RA No.
9225]

Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:

(2) Those seeking elective public in the Philippines shall meet the qualification for holding such
public office as required by the Constitution and existing laws, and at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath; .... [emphases and underscoring supplied]

The requirement of an express renunciation, however, does not negate the effect of, or make any
less real, the prior implicit renunciation of citizenship and allegiance made upon taking the oath of
allegiance. Thus, persons availing of RA No. 9225 do not renounce their foreign citizenship for the
first time by executing the Affidavit of renunciation that Section 5(2) of the law requires; they have
implicitly made this renunciation when they swore allegiance to the supreme authority of the
Republic.

What the oath of renunciation simply does is to make express what natural-born. Filipino citizens
have already implicitly renounced. The requirement of express renunciation highlights the implication
that it is not the exclusive means by which natural-born Filipino citizens may renounce their foreign
citizenship. In reality, the oath of renunciation is a requirement simply for the purpose of running for
elective public office, apparently to ensure that foreign citizenship and mixed loyalties are kept out of
the elective public service.

To paraphrase Japzon v. Comelec, 28 the oath of renunciation makes these natural-born potential
candidates for public office "pure" Philippine citizens29 from the perspective of the election laws.
In sum, the oath of allegiance not only allows these natural-born Filipinos to re-acquire Philippine
citizenship; thereby, they also implicitly renounce their citizenship and allegiance to any and all
foreign country as they assert allegiance to the "supreme authority of the Philippines and xx x
maintain true faith and allegiance thereto". The oath of renunciation, on the other hand,
complements their oath of allegiance through the express manifestation, for purpose of running for
public office, that the candidate is a "pure" Filipino.

B. Arnado's attainment, loss of "pure"

Filipino citizen status, and subsequent
Developments

Based on the above discussions, I find - as the ponencia and the majority in Maquiling did - that
Arnado became a "pure" Philippine citizen when he took his oath of allegiance to the Philippines on
July 10, 2008, and his oath of renunciation on April 3, 2009.30 With his oath of renunciation, he
became solely a Filipino citizen with total allegiance to the Republic of the Philippines.

He could have, at that point, validly run for public office, except that subsequent to his renunciation,
he travelled using his U.S. passport - a development that the Maquiling ruling unfortunately
characterized as a recantation of his previous renunciation of American citizenship.

Had the developments that transpired in Amado's political life simply stopped with his candidacy in
the May 2010 Elections, then the present case and its complications would have been avoided. But
as subsequent developments showed, a confluence of complicating factors arose.

First, Arnado ran again for the same office in the May 2013 Elections, and events overlapped. His
disqualification case was not resolved with dispatch so that the period for the filing of the CoC for the
May 2013 Elections (in October 2012) was set while the present case was still pending with this
Court.

Second, at that time, the standing ruling was the Comelec en bane decision that Arnado was not
disqualified and had perfected the required submissions for his candidacy. No restraining order or
any other ruling from this Court intervened to prevent this Comelec ruling from being the governing
rule in the interim.

As a result, Amado saw no need to undertake remedial measures addressing the matters
complained about in the 2010 Maquiling disqualification case. But at that point, he had already filed
two oaths of renunciation - on April 3, 2009 and on November 30, 2009 - when he filed his CoC for
the May 2010 Elections.

Third, he did not submit any oath of renunciation together with his October 1, 2012 CoC since, to his
knowledge, he had complied with the requirements of RA No. 9225 and the Local Government
Code, and had attained "pure" Filipino citizen status. (That he did attain this status based on the
2008 oath of allegiance and his 2009 affidavit of renunciation is in fact confirmed by Maquiling,
although his subsequent recantation intervened.)

Arnado's political world was overturned when the Court resolved the May 2010 disqualification case
on April 16, 2013, or a few days before the May 2013 elections. But Arnado did not fully dwell on the
past. While filing a motion for reconsideration of the Maquiling ruling, he also acted on his October 1,
2012 CoC by executing and submitting, on May 9, 2013, an Oath of Allegiance and Oath of
Renunciation affirming his April 3, 2009 Affidavit of Renunciation.
Thus, from the perspective of the laws governing natural-born Filipinos who have re-acquired
Philippine citizenship and who wish to run for public office, Amado did not only comply with the twin
requirements of RA No. 9225 as of April 3, 2009; he even exceeded the requirements of the law by
asserting his oath of allegiance to the Republic four times, while also impliedly renouncing any and
all foreign citizenships for the same number of "times, and twice expressly renouncing any and all
other citizenships (with one express renunciation declared recanted by Maquiling).

All these are material considerations that should be taken into account in resolving the present case
and are more fully discussed under separate headings below.

C. The Comelec gravely abused its

discretion in ruling that the May 9,
2013 Confirmation of Oath of
Affirmation was out of time.

After the promulgation of the Maquiling Decision disqualifying Amado for the May 2010 elections and
relying solely on its terms, the Comelec disqualified Amado for the May 2013 elections because his
October 1, 2012 CoC was not supported by any Affidavit of Renunciation (since Maquiling
considered his April 3, 2009 Affidavit of Renunciation for the May 2010 elections effectively
recanted).

The Comelec ruling and its underlying reasons are, on their face, patently unreasonable since they
did not consider at all the surrounding circumstances of the filing of the October 1, 2012 CoC and
the circumstances that led to the absence of any oath of renunciation after the Maquiling ruling. The
Comelec approach is in fact simplistic to the point of grave abuse of discretion. Apparently, it
considered that with the oath of renunciation·recanted and with no oath filed with the October 1,
2012 CoC, then the CoC should be considered fatally deficient. The ponencia 's reasoning also runs
this way.

Subject to fuller discussions below, I submit that the Comelec missed out on at least three (3) basic
considerations.

First, at the time the October 1, 2012 CoC was filed, the prevailing ruling, although then contested
before the Court, was the Comelec en bane ruling that did not consider Arnado disqualified. To
reiterate, no intervening restraining order was issued by this Court addressing this Comelec ruling.
Hence, there was no immediate need, at the time of the CoC's filing, for a replacement supporting
oath of renunciation.

Second, since the Comelec did not accept Amado's May 9, 2013 Affidavit of Renunciation (for the
May 2013 Elections) in the light of the Maquiling 11Jling (affecting the May 2010 elections), he was
placed in an impossible situation of being disqualified in the May 2013 Elections for a ruling
applicable only to the May 2010 Elections, without being given the opportunity to submit his
compliance for the May 2013 Elections.

Third, along the same line of thought, Arnado's May 9, 2013 Affidavit of Renunciation, submitted to
comply with his May 2013 candidacy, was rejected because it should have been filed on October 1,
2012 (i.e., when he filed his CoC for the May 2013 elections).

If the Maquiling ruling of April 16, 2013, which addressed the separate 2010 disqualification case,
was made to retroactively apply to October 1, 2012, in the separate 2013 disqualification case, then
a retroactive opportunity should also be given in the 2013 disqualification case to comply with what
retroactively applied in Maquiling.
To the extent that Arnado was denied the chance to submit a replacement ·oath of renunciation in
2013, there was an unfair and abusive denial of opportunity equivalent to grave abuse of discretion.

D. The Maquiling ruling is limited to

Arnado 's qualification to run for public
office and only for the purpose of the
May 2010 elections

I submit that the ponencia 's ruling, insofar as it adopts the Maquiling ruling, is an overreach that
runs counter to the policy behind RA No. 9225.

I submit that the extent of the legal consequences of the Maquiling ruling affect solely Arnado 's
qualification to run for public office and only for the purpose of the May 2010 elections. These
consequences should not be extended to situations outside of and not contemplated by Maquiling.

The following reasons support my view:

First, the Maquiling ruling only considered the material facts surrounding the May 2010 Elections.
The critical facts on which the Maquiling case turned dwelt with the travels of Amado using his U.S.
passport. These facts are not contested in the present case. Nor am I contesting that for eleven days
in April 2009, Amado was a "pure" Filipino, until a recantation of his renunciation oath took place.
These are settled and accepted facts.

The Maquiling ruling left out, because these are facts that it did not consider material for its
resolution (such as the overlaps in the filing of the October 1, 2012 CoC and the resolution of
Maquiling; the effect of Maquiling on the 2013 disqualification case; the oath of allegiance and
renunciation that accompanied the November 30, 2009 CoC for the May 2010 elections) or because
they were outside the scope of the relevant facts of Maquiling (such as the prevailing Comelec en
bane ruling on October 1, 2012 when Amado filed his CoC; the facts surrounding the filing of the
CoC on October 1, 2012; and the May 9, 2013 filing of the Oath of Allegiance and Oath of
Renunciation affirming his April 3; 2009 Affidavit of Renunciation).

From these perspectives, how can the 2010 Maquiling case be a seamless continuation of the 2013
disqualification case now before this Court?

Second, the implied renunciation of foreign citizenship that Amado made on several occasions is
different from and has distinct legal implications separate from the express renunciation he made on
April 3, 2009.

The implied renunciation of foreign citizenship proceeds from the oath of allegiance that natural-born
Filipino citizens take to re-acquire Philippine citizenship. This is patent from the terms of the oath of
allegiance and is a consequence of the resulting re-acquisition of Philippine citizenship.

The express renunciation, in contrast, is an after-the-fact requirement that arises only if these
natural-born Filipino citizens choose to run for public office. The requirement of an express
renunciation of foreign citizenship arises only after they have re-acquired Philippine citizenship for
the exclusive purpose of qualifying them for elective public office.

Note in this regard that Maquiling declared as recanted only the express renunciation that Arnado
executed on April 3, 2009, not the implied renunciation that Amado made on several occasions
when he swore allegiance to the supreme authority of the Republic.
This Maquiling declaration and the distinction that it signifies are crucial: first, the implied
renunciation of foreign allegiance that Amado made on several occasions still stands as valid, as
Maquiling affected only his April 3, 2009 express renunciation; second, the implied renunciation must
be valid because it did not affect Amado's reacquisition of Filipino citizenship; and third, Arnado's
express renunciation was declared recanted solely for the purpose of the May 2010 Elections, not
for any and all other purposes.

In short, Maquiling did not declare Arnado 's renunciation of his US citizenship invalid for all
purposes; it certainly could not have done so as that case involved an election disqualification case
that challenged Amado's candidacy for the mayoralty post by reason of an alleged defect in his
qualification, i.e., Amado's isolated acts that, to the majority, effectively recanted his express
renunciation.

In ruling as it did, Maquiling did not and could not have gone beyond the confines of the underlying
election disqualification case and could not have ruled on Arnado 's Philippine citizenship per se
without exceeding the confines of the Court's jurisdiction.

Citizenship and its loss, acquisition, and re-acquisition are much broader concepts that cannot
definitively be affected by a Court ruling in an election disqualification case, even if the
disqualification case touches on the citizenship qualification of the candidate. Thus, I submit that
Maquiling invalidated Arnado 's renunciation oath solely for the purpose of his qualification/or the
May 2010 elections.

Third, Amado became a "pure" Philippine citizen as of April 3, 2009, a legal consequence that
Maquiling recognized and conceded as it declared that "he in fact did" comply with the "twin
requirements under RA No. 9225" for the purpose of election qualification.

What made the Court rule against Amado's qualification for the May 2010 Elections was the finding
of positive, albeit isolated, acts that effectively "disqualified him from running for an elective public
office pursuant to Section 40(d) of the Local Government Code of 1991."

Otherwise stated, Amado, in the Maquiling sense, was indisputably already a "pure" Philippine
citizen as of April 3, 2009. He reverted to a dual citizen status (and only from the perspective of the
concerned foreign country) only on the date subsequent to April 3, 2009, and only by virtue of the
ruling that considered his use of his US passport on isolated occasions as a "voluntar[y] and
effective[] [act of] revert[ing] to [the] earlier status [of] a dual citizen."

To quote and highlight the majority's pronouncement on this point: "[s]uch reversion was not
retroactive as it took place the instant Arnado represented himself as an American citizen by using
his US passport. ,,31

Thus, even if only for qualification purposes, the April 3, 2009 Affidavit of Renunciation was a valid
and Court-recognized express declaration of Amado's renunciation of his US citizenship that the
Court cannot lightly disregard in the present disqualification case.

Fourth, even Maquiling did not perpetually and absolutely disqualify Arnado from running for any
elective public office, or from running in any elections as they declared that "[h]e is disqualified xx
from becoming a candidate in the May 2010 elections. "32

In other words, Maquiling declared Amado as disqualified from running only in the May 2010
Elections; they did not declare him as disqualified for any and all other elections, including the May
2013 Elections.
E. Arnado's May 9, 2013 Affidavit of
Renunciation, affirming his April 3,
2009 Affidavit, cured any alleged defect
in his qualification to run for public
office during the May 2013 Elections

I take exception to the ponencia 's ruling that ignores Amado's May 9, 2013 Affidavit of Renunciation
simply because it was executed after Amado filed his CoC on October 1, 2012. I submit that
Arnado's May 9, 2013 Affidavit of Renunciation bears crucial significance to Amado's qualification to
run for the May 2013 Elections which the Court cannot and should not lightly ignore.

Maquiling unequivocably held that by using an American passport, he effectively recanted his
express renunciation of his US citizenship.

Jurisprudence defines the act of recantation to mean to "withdraw or repudiate formally and publicly;"
"to renounce or withdraw prior statement." To "retract" means to "take back;" "to retract an offer is to
withdraw it before acceptance. "33

That Arnado took back his statement disavowing allegiance to the US government, however, does
not render invalid his status as a natural-born Filipino citizen; neither does it negate the fact that he
had impliedly renounced his US citizenship, and had subsequently made an express renunciation of
his US citizenship.

Granting that Amado's use of his US passport amounted to a withdrawal of the express renunciation
he made of his allegiance to the US, this withdrawal does not erase the fact that he did make an
express renunciation of his US citizenship.

To my mind, this express renunciation, even if recanted, may still be re-affirmed, ·in the same way a
statement already made and subsequently denied, can be re-confirmed. Thus, Arnado's 2013
Affidavit of Renunciation can validly re-affirm the 2009 express renunciation that the Court held to
have been recanted in Maquiling.

Note that in the May 9, 2013 Affidavit of Renunciation, Amado categorically stated that he renounces
his US citizenship, as well as any and all foreign citizenship; swears allegiance to the Republic; and
confirms the renunciation (of his US citizenship). he had previously made in the April 3, 2009
Affidavit of Renunciation.

Note, likewise, that as explained above, the April 3, 2009 Affidavit of Renunciation is a valid and
Court-confirmed oath that Amado had validly confirmed in his May 9, 2013 Affidavit. To confirm
means "to make firm: strengthen in a resolution, conviction, loyalty, position; to give new assurance
of the truth or validity; to state or imply the truth,"34and implies a prior existing act.

Finally, note that the Maquiling ruling was issued after Amado took his oath of allegiance to the
Republic four times - on July 10, 2008, April 3, 2009 (when he executed the affidavit of renunciation);
November 30, 2009 (when he filed his CoC for the May 2010 Elections); and October 1, 2012 (when
he filed his CoC for the May 2013 Elections). It was also issued after Arnado renounced his US
citizenship expressly on April 3, 2009, and impliedly on four occasions - on July 10, 2008; April 3,
2009; November 30, 2009; and October 1, 2012 - when he swore allegiance to the supreme
authority of the Republic.

In fact, in his October 1, 2012 CoC, Amado made the following oath:
I will support and defend the Constitution of the Republic of the Philippines and will maintain true
faith and allegiance thereto. I will obey all laws, legal orders and decrees promulgated by the duly
constituted authorities. I impose this obligation upon myself voluntarily, without mental reservation
and purpose of evasion.

Taken together, all these facts undeniably show that Amado's May 9, 2013 Affidavit of Renunciation
was not entirely new, nor completely different and independent from the oath of renunciation that
Arnado took on April 3, 2009. Rather, it affirmed and revalidated the Court-recognized renunciation
oath that he had earlier taken.

Indisputably, Maquiling found that Amado's express renunciation had been validly made. This
express renunciation, having been disavowed, can be re-affirmed by subsequent acts - through his
May 9, 2013 Affidavit of Renunciation and through the statement in his October 1, 2012 CoC.

The statement in Amado's October 1, 2012 CoC, for instance, is substantially similar to the oath of
allegiance required in RA No. 9225. This oath not only recognizes Amado's Filipino citizenship, but
impliedly renounces his US citizenship. That he swore sole allegiance to the Philippine Republic in
his October 1, 2012 CoC in effect affirmed his express renunciation of US citizenship; and thus
dispenses with the need for another express renunciation.

Rather than an oath that should simply be brushed aside as the Comelec did, the May 9, 2013
Affidavit served: first, to repair his reverted dual citizen status as declared in Maquiling; and second,
to re-assert and emphasize his clear intent to renounce his US citizenship which he had expressly
done once and impliedly done four times.

In this sense, the May 9, 2013 Affidavit of Renunciation retroacted to April 3, 2009, and cured any
alleged defect in Amado's October 1, 2012 CoC. More importantly, it cured any defect that the
intervening Maquiling ruling introduced on Amado's qualification to run for public office during the
May 2013 Elections.

That Amado executed his May 9, 2013 Affidavit of Renunciation while Maquiling was still under the
Court's consideration (it was not confirmed on reconsideration until July 2, 2013) is not without
significance. While the May 9, 2013 Affidavit was filed for purposes of the present disqualification
case, it could have, had the Court been so inclined, considered as a factor in ruling on Maquiling's
reconsideration; but apparently it was not at all considered since Amado's use of his US passport
was the focal point of the controversy.

F. The intervening Maquiling ruling did

not and could not have invalidated his
status as a "pure" Philippine citizen
who was qualified to run and had filed a
valid CoC for the May 2013 Elections

As the legal consequences of the Maquiling. ruling on Amado's renunciation of his US citizenship did
not extend beyond his qualification to run for public office during the May 2010 elections; and that
the May 9, 2013 Affidavit of Renunciation cured any alleged defect in Amado's qualification to run for
the May 2013 Elections, I submit that the Maquiling ruling on April 16, 2013 did not affect and could
not have affected Armado's qualification to run for public office for the purpose of the May 2013
Elections.

Under the circumstances, Amado had effectively become a "pure" natural-born Philippine citizen
again on October 1, 2012, when he executed the retroactive and curative May 9, 2013 Affidavit of
Renunciation, and which status continued well beyond the May 2013 Elections. In this way, Arnado
qualified for the position of Mayor of Kauswagan, Lanao del Norte, and filed a valid CoC.

G. When Arnado filed his CoC on October

1, 2012, the Comelec En Banc, in its
February 2, 2011 Resolution in SPA
No. 10-109(DC), declared him as
qualified to run/or the elective office;
hence, Arnado did not need to execute
another Affidavit of Renunciation
because of this standing Comelec ruling

I likewise strongly object to the ponencia for faulting Amado for not executing another oath of
renunciation at the time of or prior to the filing of his CoC on October 1, . 2012, reasoning out that as
"early as 2010 x x x Amado has gotten wind that the use of his US passport might pose a problem to
his candidacy."

It should be remembered that in the February 2, 2011 Resolution in SP A No. 10-109(DC), the
Comelec En Banc declared Arnado as a "pure" Philippine citizen again, qualified to run for elective
public office. This Comelec ruling still stood and had not yet been overturned at the time Arnado filed
his CoC on October 1, 2012 for the May 2013 Elections. Arnado, therefore, had every right and
reason to rely on this Comelec ruling and to believe that he was not disqualified to run in the May
2013 Elections.

I concede that, as the events have shown, he should, in retrospect, have exercised greater care and
have taken every. step to secure his qualification to run for public office. His failure, however, should
not and cannot affect his qualification which then stands and is authoritatively affirmed by the
Comelec.

Indeed "there is no law prohibiting him from executing an Affidavit of Renunciation every election
period" as the ponencia puts it. But, note that there is equally no law that requires him to constantly
and consistently· assert his renunciation of any and all foreign citizenship. Neither is there any law
that expressly or impliedly imposes on natural-born Filipino citizens the obligation to constantly
assert their allegiance to the Republic and perform positive acts to assert this allegiance.

In fact, as the law stands, natural-born Filipino citizens who have lost their Philippine citizenship by
reason of their naturalization as citizens of a foreign country need only to take an oath of allegiance
to the supreme authority of the Republic to re-acquire Philippine citizenship as they are "deemed not
to have lost their Philippine citizenship." Once they re-acquire their Philippine citizenship after
complying with these legal steps, they no longer need to perform any positive act to assert Philippine
citizenship or to elect citizenship.35

H. Arnado 's persistent assertions of his

allegiance to the Republic and
renunciation of his US citizenship more
than sufficiently proved his determined
resolve to profess allegiance only to the
Republic; these continuing assertions
should have resolved any doubt in favor
of his qualification
RA No. 9225 is a relatively new statutory enactment whose provisions have not been exhaustively
interpreted and ruled upon by this Court, through an appropriate case. In this respect, I submit that in
situations of doubt where the strict application of the equivocal letter of the law would clearly and
undoubtedly disregard the legislative intent, the Court must and should tread lightly as it rules on the
relatively uncharted area of application where RA No. 9225 overlaps with our elections laws.

The unique factual situation of this case presents such situation of doubt which the Court must
resolve in the light of the clear legislative intent, rather than from the strict application of the
equivocal letter of the law. I find that Amado's persistent assertion of his allegiance to the Republic
and renunciation of his US citizenship more than sufficiently prove his determined resolve to profess
allegiance only to the Republic and to none other.

I submit that the following considerations should not be missed.

At the time Amado filed his CoC on October 1, 2012, he had fully satisfied all of the requirements of
RA No. 9225 to run for elective public office: he has re-acquired Philippine citizenship after having
filed the Oath of Allegiance and secured the order of approval on July 10, 2008; he has also met all
of the qualifications under the Constitution and the law for the local elective office; and he has
already executed an Affidavit of Renunciation on April 3, 2009.

Likewise, as of October 1, 2012, Amado had sworn allegiance to the Republic four times, i.e., on
July 10, 2008; April 3, 2009; November 30, 2009; and October 1, 2012. He had also renounced his
US citizenship expressly on April 3, 2009, and impliedly thrice on July 10, 2008, November 30, 2009,
and October 1, 2012.

Additionally, on October 1, 2012, the Comelec en bane, via the February 2, 2011 resolution in SPA
No. 10-109(DC), had ruled in his favour, affirmed the existence and validity of his oath of
renunciation, and confirmed his continuing qualification for the elective post. At that time, the
February 2, 2011 Comelec ruling had not yet been reversed by this Court and stood as the final and
most recent ruling as regards his qualification to run for the local elective post. As it had not yet been
reversed, he clearly and rightfully had every reason to rely on this Comelec ruling when he filed his
CoC on October 1, 2012.

In these lights, Amado's allegiance to the supreme authority of the Republic and his renunciation of
any and all foreign allegiance, including those to the US government, cannot be doubted. From the
time he had re-acquired "pure" Philippine citizenship under the terms of RA No. 9225, Arnado has
persistently asserted these oaths even while the law does not require him to do so.

In this situation, any doubt or ambiguity should be resolved in favor of his full Filipino citizenship -
with his qualification to run for the May 2013 Elections - since the thrust of RA No. 9225 is to
encourage the return to Filipino citizenship of natural-born Filipinos who lost their Philippine
citizenship through their acquisition of foreign citizenship. 36 Note in this regard that Amado
consciously and voluntarily gave up a very much sought-after citizenship status in favor of returning
to full Filipino citizenship and of participating in Philippine governance.37

I. Maquiling did not say that Arnado used

his US passport again on January 12,
2010, and on March 23, 2010

A minor matter, asserted by the ponencia, which should be corrected is the claim that Amado "used
his US passport on January 12, 2010, and on March 23, 2010, as found by this Court in Maquiling."
I strongly object to this observation as the ponencia clearly misread Maquiling.

Nowhere in Maquiling did the Court make a finding that Arnado used his US passport again on
January 12, 2010, and March 23, 2010 - months after he had received his Philippine passport.
Rather, the alleged use by Arnado of his US passport on these dates was a mere assertion of Balua,
before the Comelec First Division in the Maquiling case; interestingly, Balua was no longer a party
when the case reached this Court. In fact, the Court in Maquiling, quoting a portion of the Comelec
En Banc decision, noted that on January 12, 2010, what Arnado used was his Philippine passport,
not his US passport.

J. Under the circumstances, the Comelec

committed grave abuse of discretion

In this Rule 64-Rule 65 petition, the Court's review is limited to the jurisdictional issue of whether the
Comelec acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction.

As a concept, grave abuse of discretion generally refers to capricious or whimsical exercise of

judgment as is equivalent to lack of jurisdiction; the abuse of discretion must be patent and gross as
to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion and hostility. Mere abuse of discretion is not enough; it must be grave.

The Court's review power is also limited by the condition, under Section 5, Rule 64 of the Rules of
Court, that findings of fact of the Comelec, supported by substantial evidence, shall be final and non-
reviewable. In this respect, the Court does not ordinarily review the Comelec' s appreciation and
evaluation of evidence as any misstep by the Comelec in this regard generally involves an error of
judgment, not of jurisdiction.

In exceptional situations, however, where the assailed judgment is based on misapprehension or

erroneous apprehension of facts or on the use of wrong or irrelevant considerations in deciding an
issue38 -situations that are tainted with grave abuse of discretion - the Court is not only obliged but
has the constitutional duty to intervene. 39When grave abuse of discretion is present, the resulting
errors mutate from error of judgment to one of jurisdiction.

I find that, based on the reasons discussed above, the Comelec' s action in this case as it
disqualified Amado from running for the May 2013 Elections, was clearly tainted with grave abuse of
discretion.

The Comelec committed grave abuse of discretion when: first, it relied completely and
indiscriminately on the Maquiling ruling - the wrong and irrelevant, or at the very least, incomplete -
consideration in deciding the underlying disqualification case; and second, it did not make its own
finding of facts and evaluation of the evidence, independent of Maquiling, and disregarded relevant
facts and evidence subsequent to Maquiling - a clear misapprehension of the facts. Note that the
Comelec, both in the September 6, 2013, and December 9, 2013 resolutions, quoted heavily
portions of the Maquiling ruling and drew its discussions and conclusion largely from Maquiling.

For these reasons, and under the circumstances of this case, I submit that the assailed Comelec
actions must be struck down for grave abuse of discretion amounting to lack or excess of
jurisdiction.
K. At any rate, all doubts should be
resolved in favor of Arnado 's
qualification: the mandate of the people
of Kauswagan that twice elected Arnado
as their Mayor should be respected and
upheld

Independently of all these issues - of Amado's qualification to run for the May 2013 Elections and the
intervention of the Maquiling ruling - the

Court cannot and should not now ignore the undeniable fact that the people of Kauswagan, Lanao
del Norte, have themselves responded to the situation of doubt that might have arisen because of
the factual link between the present disqualification case and the intervention of the Maquiling ruling.

The people themselves made their own ruling when they elected Arnado as their mayor in the two
successive elections - the May 2010 and the May 2013 elections - despite the "foreigner" label his
rivals, even the ponencia, sought to continuously pin on him.

Arnado received an overwhelming 8,902 votes as against the meager 1,707 votes of his opponent
Capitan in the May 2013 Elections; in the May 2010 Elections, he received the majority 5,952 of the
total 11,309 votes cast. At this point, "even this Court should heed this verdict by resolving all doubts
regarding Arnado's eligibility in his favor.". This is not a novel approach.40 To reiterate what Sinaca v.
Mula41 teaches us:

[When] a candidate has received popular mandate, overwhelmingly and clearly expressed, all
possible doubts should be resolved in favor of the candidate's eligibility for to rule otherwise is to
defeat the will of the people. Above and beyond all, the determination of the true will of the electorate
should be paramount. It is their voice, not ours or of anyone else, that must prevail. This, in essence,
is the democracy we continue to hold sacred.

In the words of another leading case - Frivaldo v. Comelec42- the law and the courts, including this
Court, must give serious consideration to the popular will.

"In any action involving the possibility of a reversal of the popular electoral choice, this Court must
exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority,
for it is merely sound public policy to cause elective offices to be filled by those who are the choice of
the majority. To successfully challenge a winning candidate's qualifications, the petitioner must
clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the apparent will of the people
would ultimately create greater prejudice to the very democratic institutions and juristic traditions that
our Constitution and laws so zealously protect and promote.43

Under the evidentiary and unique factual situation of this case, the alleged eligibility of Amado is not
antagonistic, patently or otherwise, to constitutional and legal principles such that giving effect to the
sovereign will would create prejudice to our democratic institutions.

Notably, the Office of the Sanggunianng Bayan, through Resolution No. 002-201444 dated January 2,
2014, and the Liga ng Mga Barangay, through Resolution No. 001-201445 dated January 2, 2014,
expressed their continuing and overwhelming support for Amado, notwithstanding the Comelec
rulings disqualifying him from the May 2013 Elections, and implores the Court to heed the
Kauswagan people's voice under the principle vox populi, vox dei.
Under the circumstances of this case, the ponencia 's action that resolves all doubts against
Amado's eligibility undoubtedly defeats the will of the Kauswagan electorate. 46 In ruling as it does,
the ponencia effectively disenfranchises an undoubtedly overwhelming majority of the Kauswagan
people as "[t]he rights of suffrage can be denied by a debasement or dilution of the weight of a
citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."

47
The Court should respect and uphold the will of the electorate.

For the above reasons, I vote to grant the petition.

ARTURO D. BRION
Associate Justice

Footnotes

Rollo, pp. 3-19.

1

2
G.R. No. 195649, April 16, 2013, 696 SCRA 420.

3
See J. Brion's Separate Opinion in Atty. Alicia Risos-Vidal v. Commission on Elections and
Joseph Ejercito Estrada, G.R. No. 206666, January 21, 2015.

4
The complete title of RA 9225 reads: "An Act Making The Citizenship of Philippine Citizens
Who Acquire Foreign Citizenship Permanent, Amending For The Purpose Commonwealth
Act No. 63, As Amended And For Other Purposes."

5
See J. Brion's Dissent to the April 16, 2013 decision in Maqui/ing, supra note 2, at 474-493.

6
Id.

7
Id.

8
Rollo, p. 7.

9
Supra note 2, at 451-452.

10
Id.

11
Rollo, p . .55.

12
Id. at 54.

13
Id. at 74.

14
Id. at 47-52.
 The case was effectively a disqualification case case as it was filed outside of the allowable
15

period for the filing of a petition for cancellation of a certificate of candidacy.

16
Id. at 68.

See excerpts of Congress deliberations on RA 9225 in AASJS v. Hon. Datumanong, 51

17

Phil.110, 116-117 (2007).

Entitled "An Act Providing For The Ways In Which Philippine Citizenship May Be Lost Or
18

Reacquired."

19
See Section 2 of CA No. 63.

Entitled "An Act To Provide For The Acquisition Of Philippine Citizenship By Naturalization,
20

And To Repeal Acts Numbered Twenty-Nine Hundred And Twenty-Seven And Thirty-Four
Hundred and Forty-Eight," enacted on June 17, 1939.

CA No. 63, as worded, provides that the procedure for re-acquisition of Philippine
citizenship by naturalization shall be in accordance with the procedure for
naturalization under Act No. 2927 (or The Naturalization Law, enacted on March 26,
1920), as amended. CA No. 473, however, repealed Act No. 2927 and 3448,
amending 2927.

21
Section 1 of RA No. 9225.

22
See AASJS v. Hon. Datumanong, supra note 17, at 117-118.

23
Id.

24
Id.

25
Supra note 22.

26
Id. at 117-118.

27
See Section 5(2) of RA No. 9225.

28
596 Phil. 354 (2009).

29
Id. at 366-376. In declaring that Jaime Ty became a "pure" Philippine citizen after taking
the Oath of Allegiance and executing an Oath of Renunciation, the Court said:

"He was born and raised in the Municipality of General Macarthur, Eastern Samar,
Philippines. However, he left to work in the USA and eventually became an American
citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking his
Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice
Consul of the Philippine Consulate General in Los Angeles, California, USA, in
accordance with the provisions of Republic Act No. 9225. At this point, Ty still held
dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that Ty
renounced his American citizenship before a notary public and, resultantly, became a
pure Philippine citizen."
 Arnado executed an affidavit of Renunciation and Oath of Allegiance before notary public
30

Thomas Dean M. Quijano. (See J. Brion Dissent in Maquiling, supra note 2.)

31
Supra note 2, at 451-452.

32
Id. at 455.

33
Almonte v. Sevallano, G.R. No. 131652, March 9, 1998.

34
Black's Law Dictionary, Fifth Edition, p. 476.

35
Their situation should be contrasted with the situation of naturalized Filipinos who must not
only prove that they possess all of the qualifications and none of the disqualifications
provided by law to acquire Philippine citizenship. They must also expressly renounce any
and all foreign citizenship, including their foreign citizenship, in order to acquire Philippine
citizenship. Should they lose their Philippine citizenship, they r.mst comply with the same
requirements and go through the same rigorous procedure when they first applied for
Philippine citizenship.

See Japzon v. COMELEC, et. al., supra note 28, at 366-376 (2009) and AASJS v. Hon.
36

Datumanong, supra note 17 at 116-117, cited in J. Brion's Dissenting Opinion dated July 2,
2013(in Maquiling v. Comelec, supra note 2).

37
See J. Brion's Dissenting Opinion dated July 2, 2013 (in Maquiling v. Comelec, supra note
2).

See Varias v. Comelec, G.R. No. 189078, February 11, 2010, cited in Mitra v. Comelec,
38

G.R. No. 191938, July 2, 201 O; and Belongilot v. Cua, et. al., 650 Phil. 392, 405 (2010).

39
See Section 1, Article VIII of the Constitution.

See J. Panganiban's Concurring Opinion in Bengson III v. House Representatives Electoral

40

Tribunal (G.R. No. 142840, May 7, 2001, 357 SCRA 545) where respondent Teodoro C.
Cruz'scitizenship was also questioned, viz:

4. In Case of Doubt, Popular Will Prevails

Fourth, the court has a solemn duty to uphold the clear and unmistakable mandate of
the people. It cannot supplant the sovereign will of the Second District of Pangasinan
with fractured legalism. The people of the District have clearly spoken. They
overwhelmingly and unequivocally voted for private respondent to represent them in
the House of Representatives. The votes that Cruz garnered (80, 119) in the last
elections were much more than those of all his opponents combined ( 66, 182). In
such instances, all possible doubts should be resolved in favor of the winning
candidate's eligibility; to rule otherwise would be to defeat the will of the people.

Well-entrenched in our jurisprudence is the doctrine that in case of doubt, political

laws must be so constructed as to give life and spirit to the popular mandate freely
expressed through the ballot. Public interest and the sovereign will should, at all
times, be the paramount considerations in election controversies. For it would be
 better to err in favor of the people's choice than to be right in complex but little
understood legalisms.

Indeed, this Court has repeatedly stressed the importance of giving effect to the
sovereign will in order to ensure the survival of our democracy. In any action
involving the possibility of a reversal of the popular electoral choice, this Court must
exert utmost effort to resolve the issues in a manner that would give effect to the will
of the majority, for it is merely sound public policy to cause elective offices to be filled
by those who are the choice of the majority. To successfully challenge a winning
candidate's qualifications, the petitioner must clearly demonstrative that the
ineligibility is so patently antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of the people
would ultimately create greater prejudice to the very democratic institutions and
juristic traditions that our Constitution and laws so zealously protect and promote.
[Emphasis ours] See also Fernandez v. House of Representatives Electoral Tribunal,
G.R. No. 187478, December 21, 2009, 608 SCRA 733.

41
373 Phil. 896 (1999).

42
G.R. No. 120295, June 28, 1996.

43
Frivaldo v. Comelec, G.R. No. 120295, June 28, 1996.

44
Rollo, pp. 103-108.

45
Rollo, pp. 109-113.

46
See Sinaca v. Mula, 373 Phil. 896 (1999), where the Court said:

"[When], a candidate has received popular mandate, overwhelmingly and clearly

expressed, all possible doubts should be resolved in favor of the candidate's
eligibility for to rule otherwise is to defeat the will of the people. Above and beyond
all, the determination of the true will of the electorate should be pa amount. It is their
voice, not ours or of anyone else, that must prevail. This, in essence, is the
democracy we continue to hold sacred."

Gore v. Bush, 531 U.S. 98, 105, 121 S. Ct. 525, 530; 148 L. Ed. 2d 288, 397 (2000), citing
47

Reynolds v. Sims, 377 U.S. 533, 555, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964).

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

LEONEN, J.:

Petitioner Rommel C. Amado renounced his foreign citizenship in accordance with Republic Act No.
9225 no less than three times. After he had filed his candidacy for the position of Mayor in 2013, this
court promulgated its Decision in Maquiling v. Commission on Elections, 1 which made it impossible
for him to again renounce or reiterate his renunciation of his foreign citizenship. In the 2013
elections, he won garnering 84o/o of the votes cast in his municipality. The majority opinion requires
him now, yet again, to renounce his foreign citizenship.

I concur with the ponencia's finding that petitioner's claim of procedural infirmities that occurred
during the proceedings before the Commission on Elections is unsubstantiated.

However, I cannot agree with the conclusion that petitioner remained an American citizen in
accordance with this court's ruling in Maquiling. Petitioner was already a Filipino citizen at the time
he filed his Certificate of Candidacy on October 1, 2012. He was qualified to run in the 2013
Elections. The Petition should be granted.

Petitioner has performed all the acts required by Republic Act No. 92252 in order to reacquire his
Filipino citizenship.

Under Section 39(a) of the Local Government Code,3 a candidate for Mayor must be a citizen of the
Philippines, a registered voter, a resident in the municipality or city where he or she intends to be
elected for at least one (1) year immediately preceding the day of election, and be able to read and
write Filipino or any local language or dialect.

Section 40(d) of the Local Government Code 4 expressly disqualifies those who possess dual
citizenship from running in any local elective position. These provisions, however, do not disqualify
candidates who might have lost their citizenship but were able to reacquire it before running for
public office.

Article IV, Section 3 of the Constitution provides that "Philippine citizenship may be lost or reacquired
in the manner provided by law."

Those who lose their Filipino citizenship through naturalization in another country may reacquire it
through the procedure outlined in Republic Act No. 9225. This also applies to naturalized citizens
who wish to reacquire their Filipino citizenship in order to run for public office.

According to Section 3 of Republic Act No. 9225:

SEC. 3. Retention of Philippine Citizenship. - Any provision of law to the contrary

notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a
foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the
following oath of allegiance to the Republic:

"I , solemnly swear (or affirm) that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the
duly constituted authorities of the Philippines; and I hereby declare that I recognize
and accept the supreme authority of the Philippines and will maintain true faith and
allegiance thereto; and that I impose this obligation upon myself voluntarily without
mental reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens
of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.
The effect of reacquisition is the restoration of Philippine citizenship to natural-born Filipino citizens
who have been naturalized as citizens in a foreign country. All that is required to retain their
citizenship is to take the oath of allegiance under the law.

In the previous repatriation law, naturalized citizens seeking to reacquire Philippine citizenship only
had to take an oath of allegiance in order to regain their citizenship, including the right to seek public
office. 5 Act No. 636 states:

SEC. 4. Repatriation shall be effected by merely taking the necessary oath of allegiance to the
Commonwealth of the Philippines and registration in the proper civil registry.

The same requirement is present in the present reacquisition law. Philippine citizenship is deemed to
have been reacquired through the taking of the oath of allegiance embodied in Section 3 of Republic
Act No. 9225. However, unlike the previous law, the mere act of taking the oath of allegiance is not
sufficient compliance for those seeking to run for public office. The law includes an additional
requisite before they become qualified to run for public office, thus:

SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:

(2) Those seeking elective public in the Philippines shall meet the qualification for holding
such public office as required by the Constitution and existing laws and, at the time of the
filing of the certificate of candidacy, make a personal and sworn renunciation of any and all
foreign citizenship before any public officer authorized to administer an oath[.] (Emphasis
supplied)

In Japzon v. Commission on Elections: 7

[F]or a natural born Filipino, who reacquired or retained his Philippine citizenship under Republic Act
No. 9225, to run for public office, he must: ( 1) meet the qualifications for holding such public office
as required by the Constitution and existing laws; and (2) make a personal and sworn renunciation
of any and all foreign citizenships before any public officer authorized to administer an oath.8

The law requires a personal and sworn renunciation of all foreign citizenships before the candidate
files a certificate of candidacy.

In Jacot v. Dal and Commission on Elections,9 this court disqualified Nestor A. Jacot from running for
Vice Mayor of Catarman, Camiguin, after he failed to make a personal and sworn renunciation of his
American citizenship:

The law categorically requires persons seeking elective public office, who either retained their
Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any
and all foreign citizenship before a public officer authorized to administer an oath simultaneous with
or before the filing of the certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been
naturalized as citizens of a foreign country, but who reacquired or retained their Philippine
citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for
those seeking elective public offices in the Philippines, to additionally execute a personal and sworn
renunciation of any and all foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine
elections.

Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation
of any and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under
the said Act to accomplish an undertaking other than that which they have presumably complied with
under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made clear in
the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House Bill No.
4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225),
where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to
Hon. Representative Exequiel Javier that the oath of allegiance is different from the renunciation of
foreign citizenship:

CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the Philippines shall
meet the qualifications for holding such public office as required by the Constitution and existing
laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to administer an
oath." I think it's very good, ha? No problem?

REP. JAVIER.... I think it's already covered by the oath.

CHAIRMAN DRILON. Renouncing foreign citizenship.

REP. JAVIER. Ah ... but he has taken his oath already.

CHAIRMAN DRILON. No ... no, renouncing foreign citizenship.

CHAIRMAN DRILON. Can I go back to No. 2. What's your problem, Boy? Those seeking elective
office in the Philippines.

REP. JAVIER. They are trying to make him renounce his citizenship thinking that ano ...

CHAIRMAN DRILON. His American citizenship.

REP. JAVIER. To discourage him from running?

CHAIRMAN DRILON. No.

REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When he runs for
office, he will have only one.

There is little doubt, therefore, that the intent of the legislators was not only for Filipinos reacquiring
or retaining their Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance
to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish
to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos
must only have one citizenship, namely, Philippine citizenship.

By the same token, the oath of allegiance contained in the Certificate of Candidacy, which is
substantially similar to the one contained in Section 3 of Republic Act No. 9225, does not constitute
the personal and sworn renunciation sought under Section 5(2) of Republic Act No. 9225. It bears to
emphasize that the said oath of allegiance is a general requirement for all those who wish to run as
candidates in Philippine elections; while the renunciation of foreign citizenship is an additional
requisite only for those who have retained or reacquired Philippine citizenship under Republic Act
No. 9225 and who seek elective public posts, considering their special circumstance of having more
than one citizenship.10 (Emphasis in the original)

Section 5 of Republic Act No. 9225 restores full civil and political rights to those who wish to
reacquire their citizenship, including the right to vote and be voted for. A candidate may have the
right to vote and be voted for as long as he or she has already done all positive acts necessary for
the reacquisition of his or her Philippine citizenship before filing his or her certificate of candidacy.

Residency as a requirement for public office must also be interpreted as a separate matter from
citizenship. Residence is said to be synonymous to domicile.11 Domicile requires both physical
presence and animus revertendi or intent to return.12 Citizenship may be presumed from one's
domicile,13 but this presumption is disputable. Further proof other than domicile may be required to
prove citizenship.

A person residing in the Philippines is presumed to be a Filipino citizen. Domicile, however, does not
ipso facto prove his or her citizenship. A Filipino may reside in the United States but still remain a
Filipino citizen. An American may also reside in the Philippines and still remain an American citizen.
The presumption created by residency is not conclusive of one's citizenship.

Residency also need not be continuous for as long as the total number of required years have been
complied with before the election. Section 39(a) of the Local Government Code requires residency
for "at least one (1) year immediately preceding the day of the election for local elective office." A
candidate for local elective office may be eligible to run for as long as he or she is proven to have
animus revertendi in a certain domicile for at least one (1) year immediately preceding the elections.

The purpose of the residency requirement is "to give candidates the opportunity to be familiar with
the needs, difficulties, aspirations, potentials for growth[,] and all matters vital to the welfare of their
constituencies; likewise, it enables the electorate to evaluate the office seekers' qualifications and
fitness for the job they aspire for."14 The length of a candidate's residency depends on the time
necessary to acquire familiarity with the constituency as well as sensitivity to the welfare of the
constituents. The requirement seeks "to exclude a stranger or newcomer, unacquainted with the
conditions and needs of a community and not identified with the latter, from an elective office to
serve that community."15

Continuity does not always guarantee familiarity. A momentary absence from the country does not
negate the purpose of the residency requirement.16 A candidate who has spent some time abroad
may offer a unique perspective as opposed to a candidate who has never left the country.

The former may be in a better position to observe the changes the country may have undergone
through the years, or may have a stronger intuition as to the level of growth it still needs. What is
important is that the purpose of residency is complied with.

Petitioner took his Oath of Allegiance to the Republic of the Philippines on July 10, 2008. On April 3,
2009, he executed his Affidavit of Renunciation of his foreign citizenship. Petitioner alleges that he
executed his Affidavit of Renunciation with Oath of Allegiance on November 30, 2009. On May 9,
2013, he again executed the Affidavit Affirming Rommel C. Arnado 's "Affidavit of Renunciation
Dated April 3, 2009. "
Petitioner renounced his American citizenship no less than three times before he filed his Certificate
of Candidacy on October 1, 2012. He had performed all the acts required by Republic Act No. 9225
in order to reacquire his Filipino citizenship before he ran for public office.

However, the ponencia takes exception to these findings of fact and rules that, in accordance with
this court's findings in Maquiling, petitioner's use of his American passport after executing his
Affidavit of Renunciation negated his Affidavit. I cannot agree with this conclusion.

II

Petitioner's use of his American passport was an isolated act required by the circumstances. At that
time, he had not yet been issued his Philippine passport.

In the dissent in Maquiling led by Associate Justice Arturo D. Brion, it was pointed out that when
Amado traveled back to the United States, "he had no Philippine passport that he could have used to
travel to the United States to attend to the winding up of his business and other affairs in America."17

The use of a foreign passport should not by itself cause the immediate nullity of one's affidavit of
renunciation. Its circumstances must also be taken into account.

The necessity of the use of his American passport is shown by the timeline of events, thus:

Affidavit of Renunciation: April 3, 2009

Date of Issuance of Philippine Passport: June 18, 2009

Receipt of Philippine Passport: September 2009

Second Affidavit of Renunciation with Oath of Allegiance (alleged by petitioner): November 30, 2009

Date of Travels18

Destination Date of Departure from the Philippines Date of Arrival in the Philippines Passport
USA April 14, 2009 June 25, 2009 American
USA July 29, 2009 November 24, 2009 American
USA December 11, 2009 January 12, 2010 Philippine
USA January 31, 2010 March 31, 2010 Philippine
USA April 11, 2010 April 16, 2010 Philippine
USA May 20, 2010 June 4, 2010 Philippine

Petitioner could use only his American passport when he traveled on April 14, 2009 since the
Consulate of the Philippines had not yet issued him a Philippine passport.

When petitioner received his Philippine passport sometime in September 2009, he could not
immediately use it to exit the United States since he entered the country using an American
passport. If he exited using a Philippine passport, one presumably without an American visa,
immigration authorities of both the Philippines and the United States would have questioned his
travel documents. He would have had no choice but to use his American passport to exit the United
States.

However, petitioner did use his Philippine passport in his subsequent travels. Hence, his isolated
use of his American passport when he did not yet have his Philippine passport is not sufficient cause
to negate his Affidavit of Renunciation.

The ponencia cites Maquiling, in that Linog C. Balua, petitioner's rival candidate in the 2010
Elections, presented a certification dated April 23, 2010 from the Bureau of Immigration indicating
that as of January 12, 2010 and March 23, 2010, petitioner's nationality was "USA-American." The
Computer Database/Passenger Manifest states:

DATE OF Arrival : 01/12/2010

NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270019

This certification is contradicted by petitioner's Philippine passport which was stamped by the
Bureau of Immigration also on these dates. 20 It was, therefore, erroneous for the ponencia to refer to
the certification as "uncontroverted. "21

The ponencia unduly gives weight to the Bureau of Immigration's certification on the basis that the
copy of his Philippine passport was a mere "certified true copy from the machine copy on
file."22 Maquiling undoubtedly states that petitioner was issued a Philippine passport and that he used
it for his subsequent travels abroad.23 There is a presumption that this piece of evidence, like the
certification by the Bureau of Immigration, can be relied upon since it forms part of the case records.
Under the presumption of regularity, his passport is presumed to have been stamped by the Bureau
of Immigration. Until and unless it is alleged and proven that the stamps on his Philippine passport
are fraudulent, it is presumed that the Bureau of Immigration certified the use of his Philippine
passport and the use of his American passport on the dates alleged. It is also possible that at the
time the certification was issued, the Bureau of Immigration had not yet updated its database.
Therefore, it was erroneous for the ponencia to conclude that petitioner used his American passport
on January 12, 2010 and on March 23, 2010 based merely on the certification dated April 23, 2010.24

III

Even if the ponencia applied the ruling in Maquiling, Amado should have already been qualified to
run in the 2013 Elections

Maquiling held that petitioner's use of his American passport negated his Affidavit of Renunciation,
thus disqualifying him to run in the 2010 Elections:

We therefore hold that Amado, by using his US passport after renouncing his American citizenship,
has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code
applies to his situation. He is disqualified not only from holding the public office but even from
becoming a candidate in the May 2010 elections. 25
Therefore, it can be reasonably concluded that, per Maquiling, petitioner's use of his Philippine
passport signifies his Philippine citizenship.

According to Republic Act No. 8239,26 a passport is "a document issued by the Philippine
government to its citizens and requesting other governments to allow its citizens to pass safely and
freely, and in case of need to give him/her all lawful aid and protection."27

By definition, a Philippine passport is a document issued by the government to its citizens. Clearly, a
Philippine passport cannot be issued to an American citizen.

If this court concludes, as the ponencia has done, that petitioner remained an American citizen, the
facts should show that he continued to use his American passport before he filed his Certificate of
Candidacy for the 2013 Elections.

As of June 18, 2009, petitioner was issued a Philippine passport. He has continually used his
Philippine passport from December 11, 2009. He also executed an Affidavit of Renunciation with
Oath of Allegiance on November 30, 2009. By the time he filed his Certificate of Candidacy on
October 1, 2012, he was already the bearer of a Philippine passport. In Yu v. Defensor-Santiago,28 a
petition for habeas corpus was filed against then Commissioner for Immigration and Deportation
Miriam Defensor-Santiago for the release of Willie Yu (Yu) from detention. This court, confronted
with the issue of Yu's citizenship, found:

Petitioner's own compliance reveals that he was originally issued a Portuguese passport in 1971,
valid for five (5) years and renewed for the same period upon presentment before the proper
Portuguese consular officer. Despite his naturalization as a Philippine citizen on 10 February 1978,
on 21 July 1981, petitioner applied for and was issued Portuguese Passport No. 35/81 serias N.
1517410 by the Consular Section of the Portuguese Embassy in Tokyo. Said Consular Office
certifies that his Portuguese passport expired on 20 July 1986. While still a citizen of the Philippines
who had renounced, upon his naturalization, "absolutely and forever all allegiance and fidelity to any
foreign prince, potentate, state or sovereignty" and pledged to "maintain true faith and allegiance to
the Republic of the Philippines," he declared his nationality as Portuguese in commercial documents
he signed, specifically, the Companies Registry of Tai Shun Estate Ltd. filed in Hongkong sometime
in April 1980.

To the mind of the Court, the foregoing acts considered together constitute an express renunciation
of petitioner's Philippine citizenship acquired through naturalization. In Board of Immigration
Commissioners vs. Go Galiano, express renunciation was held to mean a renunciation that is made
known distinctly and explicitly and not left to inference or implication. Petitioner, with full knowledge,
and legal capacity, after having renounced Portuguese citizenship upon naturalization as a
Philippine citizen resumed or reacquired his prior status as a Portuguese citizen, applied for a
renewal of his Portuguese passport and represented himself as such in official documents even after
he had become a naturalized Philippine citizen. Such resumption or reacquisition of Portuguese
citizenship is grossly inconsistent with his maintenance of Philippine citizenship.29 (Emphasis
supplied)

Yu's renewal of his Portuguese passport was a renunciation of his Philippine citizenship. This court
took into account Yu's application for renewal and his declaration of his Portuguese nationality in
commercial documents.

In contrast, petitioner was forced by his circumstances to use his American passport at a time when
he had not yet been issued a Philippine passport. Upon the issuance of his Philippine passport,
however, petitioner consistently used this passport for his travels. His consistent use of his Philippine
passport was a positive act that showed his continued allegiance to the country.

Petitioner's continued intent to renounce his American citizenship is clear when he executed his
Affidavit Affirming Rommel C. Arnado 's "Affidavit of Renunciation Dated April 3, 2009" on May 9,
2013.

Republic Act No. 9225 requires a personal and sworn renunciation from persons who seek to
reacquire their Philippine citizenship in order to run for local office. Petitioner's Affidavit of
Renunciation dated April 3, 2009, his continued use of his Philippine passport, his alleged Affidavit of
Renunciation with Oath of Allegiance dated November 30, 2009, and his Affidavit dated May 9, 2013
are more than enough evidence to show his personal and sworn renunciation of his American
citizenship.

IV

Election laws must be interpreted to give effect to the will of the people.

Petitioner garnered an overwhelming 8,902 votes, 84% of the total votes cast3° in the 2013
mayoralty elections. If he is disqualified, Florante Capitan, his opponent who garnered 1, 707 votes,
a mere 16% of the total votes cast,31will become the duly elected mayor of Kauswagan, Lanao del
Norte. This court will have substituted its discretion over the sovereign will of the people.

The ponencia erroneously cites Lopez v. Commission on Elections32 as basis for stating that
petitioner's landslide victory could not override eligibility requirements.

In Lopez, a petition for disqualification was filed against Eusebio Eugenio K. Lopez (Lopez) to
disqualify him from running for Barangay Chair in the 2007 Barangay Elections. Lopez argued that
he was a dual citizen by virtue of Republic Act No. 9225 and, hence, was qualified to run.

This court disagreed and disqualified Lopez from running in public office since he failed to make a
personal and sworn renunciation of his American citizenship. It also ruled that his subsequent victory
in the elections could not cure the defect of his disqualification:

While it is true that petitioner won the elections, took his oath and began to discharge the functions
of Barangay Chairman, his victory cannot cure the defect of his candidacy. Garnering the most
number of votes does not validate the election of a disqualified candidate because the application of
the constitutional and statutory provisions on disqualification is not a matter of popularity.33

Lopez, however, does not apply since the candidate in that case failed to execute a personal and
sworn renunciation of his American citizenship. In this case, petitioner made a personal and sworn
1avv phi1

renunciation of his American citizenship no less than three times.

In Japzon v. Commission on Elections, 34 a petition for disqualification was brought against Jaime S.
Ty (Ty), who won as Mayor of MacArthur, Eastern Samar in the 2007 Elections. Ty was a natural
born Filipino citizen who migrated to the United States and stayed there for 25 years. He took an
Oath of Allegiance in 2005 and renounced his American citizenship before a notary public on March
19, 2007. The question before this court, however, was whether his reacquisition of citizenship has
the effect of regaining his domicile, in compliance with the residency requirements for elections.
In resolving the issue, this court found that Ty substantially complied with the requirements of
Section 5(2) of Republic Act No. 9225 when he personally executed a Renunciation of Foreign
Citizenship before a notary public before filing his Certificate of Candidacy. It also ruled that Ty was
1âw phi1

able to comply with the residency requirements:

[W]hen the evidence of the alleged lack of residence qualification of a candidate for an elective
position is weak or inconclusive and it clearly appears that the purpose of the law would not be
thwarted by upholding the victor's right to the office, the will of the electorate should be respected.
For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters. To
successfully challenge Ty's disqualification, Japzon must clearly demonstrate that Ty's ineligibility is
so patently antagonistic to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people would ultimately create greater prejudice to
the very democratic institutions and juristic traditions that our Constitution and laws so zealously
protect and promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to be
Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines.35 (Emphasis supplied)

In Bengson III v. House of Representatives Electoral Tribunal, 36 a similar citizenship issue was
raised against Teodoro C. Cruz (Cruz) on the ground that he lost his citizenship when he enlisted in
the United States Marine Corps in 1985. This court disagreed, stating that Cruz reacquired his
Philippine citizenship through repatriation under Republic Act No. 2630.

Former Associate Justice Artemio V. Panganiban's Concurring Opinion is particularly instructive in

stating that this court has a duty to uphold the clear mandate of the people, thus:

4. In Case of Doubt, Popular Will Prevails

[T]he Court has a solemn duty to uphold the clear and unmistakable mandate of the people. It
cannot supplant the sovereign will of the Second District of Pangasinan with fractured legalism. The
people of the District have clearly spoken. They overwhelmingly and unequivocally voted for private
respondent to represent them in the House of Representatives. The votes that Cruz garnered (80,
119) in the last elections were much more than those of all his opponents combined (66, 182). In
such instances, all possible doubts should be resolved in favor of the winning candidate's eligibility;
to rule otherwise would be to defeat the will of the people.

Well-entrenched in our jurisprudence is the doctrine that in case of doubt, political laws must be so
construed as to give life and spirit to the popular mandate freely expressed through the ballot. Public
interest and the sovereign will should, at all times, be the paramount considerations in election
controversies. For it would be better to err in favor of the people's choice than to be right in complex
but little understood legalisms. "Indeed, this Court has repeatedly stressed the importance of giving
effect to the sovereign will in order to ensure the survival of our democracy. In any action involving
the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to
resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound
public policy to cause elective offices to be filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate
that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding
such ineligibility and thereby giving effect to the apparent will of the people would ultimately create
greater prejudice to the very democratic institutions and juristic traditions that our Constitution and
laws so zealously protect and promote."37 (Emphasis supplied)

Petitioner has proven over and over again that he has renounced his American citizenship. He
continues to use his Philippine passport for his foreign travels. His landslide victory in the 2013
Elections represents the trust of his constituents in him. To disqualify him from public office for the
isolated and reasonable use of his American passport would be to set aside the clear and
unmistakable sovereign will of the people. It will impose an unreasonable burden over his and the
electorate's fundamental right to suffrage.

ACCORDINGLY, I vote to GRANT the Petition.

MARVIC M.V.F. LEONEN

Associate Justice

Footnotes

1
G.R. No. 195649, April 16, 2013, 696 SCRA 420 [Per C.J. Sereno, En Banc].

2
Citizenship Retention and Re-acquisition Act of2003 (2003).

3
SECTION 39. Qualifications. - (a) An elective local official must be a citizen of the
Philippines; a registered voter in the Barangay, municipality, city, or province or, in the case
of a member of the Sangguniang Panlalawigan, Sangguniang Panlungsod, or Sanggunian
bayan, the district where he intends to be elected; a resident therein for at least one (I) year
immediately preceding the day of the election; and able to read and write Filipino or any
other local language or dialect.

4
SECTION 40. Disqualifications. - The following persons are disqualified from running for
any elective local position:

(d) Those with dual citizenship[.]

5
See Com. Act No. 63 (1936), sec. 4.

6
An Act Providing for the Ways in which Philippine Citizenship may be Lost or Reacquired.

7
596 Phil. 354 (2009) [Per J. Chico-Nazario, En Banc].

8
Id. at 368.

9
592 Phil. 661 (2008) [Per J. Chico-Nazario, En Banc].

Id. at 671-673, citing Lopez v. Commission on Elections, 581 Phil. 657 (2008) [Per J. R. T.
10

Reyes, En Banc].

Co v. Electoral Tribunal of the House of Representatives, G.R. Nos. 92191-92, July 30,
11

1991, 199 SCRA 692 [Per J. Gutierrez, Jr., En Banc].

Romualdez-Marcos v. Commission on Elections, G.R. No. 119976, September 18, 1995,

12

248 SCRA 300 [Per J. Kapunan, En Banc].

13
See Coquilla v. Commission on Elections, 434 Phil. 861, [Per J. Mendoza, En Banc].
 Torayno v. Commission on Elections, 392 Phil. 342, 345 (2000) [Per J. Panganiban, En
14

Banc].

15
Gallego v. Verra, 74 Phil. 453, 459 (1941) [Per J. Ozaeta, En Banc].

16
See Faypon v. Quirino, 96 Phil. 294 (1954) [Per J. Padilla, En Banc], where this court
stated that a person who has left home "to seek greener pastures" and returns to his
birthplace to participate in the electoral process without absenting himself from his
professional or business activities is not considered to have lost his residence.

J. Brion, Dissenting Opinion in Maqui/ing v. Commission on Elections, G.R. No. 195649,

17

April 16, 2013, 696 SCRA 429, 487 [Per C.J. Sereno, En Banc].

18
Id. at 476-477.

Maquiling v. Commission on Elections, G.R. No. 195649, April 16, 2013, 696 SCRA 429,
19

433 [Per C.J. Sereno, En Banc].

J. Brion, Dissenting Opinion in Maquiling v. Commission on Elections, G.R. No. 195649,

20

April 16, 2013, 696 SCRA429, 488 [Per C.J. Sereno, En Banc].

21
Ponencia, p. 18.

22
Id.

23
Maquiling v. Commission on Elections, G.R. No. 195649, April 16, 2013, 696 SCRA 429
[Per C.J. Sereno, En Banc].

24
Ponencia, p. 15.

Maquiling v. Commission on Elections, G.R. No. 195649, April 16, 2013, 696 SCRA 429,
25

455 (Per C.J. Sereno, En Banc].

26
Philippine Passport Act of 1996 (1996).

27
Rep. Act No. 8239, sec. 3(d).

28
251 Phil. 346 (1989) [Per J. Padilla, En Banc]

Id. at 350-352, citing Oh Hek How v. Republic, 139 Phil. 567 (1969) [Per J. Concepcion, En
29

Banc].

30
Ponencia, p. 4.

31
Id.

32
581 Phil. 657 (2008) [Per J. R.T. Reyes, En Banc].

Id. at 663, citing Reyes v. Commission on Elections, 186 Phil. 349 (1980) [Per C.J.
33

Fernando, En Banc].
34
596 Phil. 354 (2009) [Per J. Chico-Nazario, En Banc].

Id. at 375, citing Papandayan, Jr. v. Commission on Elections, 430 Phil. 754 (2002) [Per J.
35

Mendoza, En Banc].

36
409 Phil. 633 (2001) [Per J. Kapunan, En Banc].

J. Panganiban, Concurring Opinion in Bengson Ill v. House of Representatives Electoral

37

Tribunal, 409 Phil. 633, 659-660 (2001) [Per J. Kapunan, En Banc], citing Sina ca v. Mula, 3
73 Phil. 896 ( 1999) [Per C.J. Davide, Jr., En Banc]; Frivaldo v. Commission on Elections,
327 Phil. 521 (1996) [Per J. Panganiban, En Banc]; and Olondriz v. Commission on
Elections, G.R. No. 135084, August 25, 1999, 313 SCRA 128 [Per J. Kapunan, En Banc].
G.R. No. 216607

ARLENE LLENA EMPAYNADO CHUA, Petitioner,

vs.
COMMISSION ON ELECTIONS, IMELDA E. FRAGATA, and KRYSTLE MARIE C.
BACANI, Respondents.

DECISION

LEONEN, J.:

Dual citizens are disqualified from running for any elective local position. They cannot successfully
run and assume office because their ineligibility is inherent in them, existing prior to the filing of their
certificates of candidacy. Their certificates of candidacy are void ab initio, and votes cast for them
will be disregarded. Consequently, whoever garners the next highest number of votes among the
eligible candidates is the person legally entitled to the position.

This resolves a Petition for Certiorari and Prohibition1 assailing the Commission on Elections
Resolutions dated October 17, 20132 and January 30, 2015.3 The Commission on Elections annulled
the "proclamation of . . . Arlene Llena Empaynado Chua as Councilor for the Fourth District of
Manila[,]"4 and directed the Board of Canvassers to reconvene and proclaim Krystle Marie C. Bacani
(Bacani) as Councilor for having garnered the next highest number of votes.5

On October 3, 2012, Arlene Llena Empaynado Chua (Chua) filed her Certificate of Candidacy6 for
Councilor for the Fourth District of Manila during the May 13, 2013 National and Local Elections. The
Fourth District of Manila is entitled to six (6) seats in the Sangguniang Panlungsod.7

After the conduct of elections, Chua garnered the sixth highest number of votes.8 She was
proclaimed by the Board of Canvassers on May 15, 2013.9

On the date of Chua’s proclamation, however, Imelda E. Fragata (Fragata) filed a

Petition10 captioned as a "petition to declare [Chua] as a nuisance candidate"11 and "to deny due
course and/or cancel [Chua’s] Certificate of Candidacy."12 Fragata was allegedly a registered voter in
the Fourth District13 who claimed that Chua was unqualified to run for Councilor on two grounds:
Chua was not a Filipino citizen, and she was a permanent resident of the United States of
America.14 Fragata specifically alleged the following in her Petition:

3. [Chua] is not a Filipino Citizen.

4. Prior to the filing of her candidacy, [Chua] has been living in the United States of America
(USA) for at least 33 years.

5. [Chua] is an immigrant and was validly issued a Green Card by the Government of the
USA.

6. She resided and continues to reside [in Georgia, USA].

7. [Chua] has been a Registered Professional Nurse in the State of Georgia, USA since
November 17, 1990.

8. . . . [Chua’s] Professional License in the USA is still to expire in 31 January 2014.15

The last paragraph of the Petition prayed that Chua "be disqualified as a candidate for the position of
councilor in the Fourth District of the City of Manila[.]"16

Answering the Petition, Chua contended that she was a natural-born Filipino, born to Filipino parents
in Cabanatuan City, Nueva Ecija.17 With respect to her residency, Chua alleged that she had been
residing in Sampaloc, Manila since 200818 and had more than complied with the one-year period
required to run for Councilor.19

According to Chua, Fragata’s Petition was belatedly filed,20 whether it was treated as one for
declaration of a nuisance candidate21 or for denial of due course or cancellation of certificate of
candidacy.22 Fragata filed her Petition on May 15, 2013, which was beyond five (5) days from
October 5, 2012, the last day of the filing of certificates of candidacy.23 The Petition was also filed
beyond 25 days from October 3, 2012,24 the date Chua filed her Certificate of Candidacy.25

Chua stressed that she had already been proclaimed on May 15, 2013, the same date that Fragata
filed her Petition; hence, Fragata’s proper remedy was to file a petition for quo warranto26 under
Section 253 of the Omnibus Election Code. Chua prayed that the Commission dismiss Fragata’s
Petition.27

On June 19, 2013, Bacani filed a Motion to Intervene with Manifestation and Motion to Annul
Proclamation.28 Bacani alleged that she likewise ran for Councilor in the Fourth District of Manila, and
that after the canvassing of votes, she ranked seventh among all the candidates, next to
Chua.29 Should Chua be disqualified, Bacani claimed that she should be proclaimed
Councilor30 following this Court’s ruling in Maquiling v. Commission on Elections.31

Bacani argued that Chua, being a dual citizen, was unqualified to run for Councilor.32 Based on an
Order of the Bureau of Immigration, Chua was allegedly naturalized as an American citizen on
December 7, 1977.33 She was issued an American passport34 on July 14, 2006.

Chua took an Oath of Allegiance to the Republic of the Philippines on September 21,
2011.35 Nonetheless, Chua allegedly continued on using her American passport, specifically on the
following dates:

October 16, 2012 Departure for the United States

December 11, 2012 Arrival in the Philippines

May 30, 2013 Departure for the United States36

Moreover, Chua did not execute an oath of renunciation of her American citizenship.37

With Chua being a dual citizen at the time she filed her Certificate of Candidacy, Bacani prayed that
the Commission on Elections annul Chua’s proclamation.38

In her Comment/Opposition (to the Motion to Intervene of Krystle Marie Bacani),39 Chua argued that
the Motion was a belatedly filed petition to deny due course or cancel a certificate of candidacy,
having been filed after the day of the elections.40 According to Chua, the Motion should not even be
considered since she was already proclaimed by the Board of Canvassers.41 Thus, Chua prayed that
the Motion to Intervene be denied and expunged from the records of the case.42

The Commission on Elections then ordered the parties to file their respective memoranda.43
In her Memorandum,44 Chua maintained that Fragata’s Petition was filed out of time and should have
been outright dismissed.45 Reiterating that she had already been proclaimed, Chua argued that
Fragata’s proper remedy was a petition for quo warranto.46

Countering Chua’s claims, Fragata and Bacani restated in their Joint Memorandum47 that Chua was
a dual citizen disqualified from running for any elective local position.

The Commission on Elections Second Division resolved Fragata’s Petition. Ruling that Bacani had a
legal interest in the matter in litigation, it allowed Bacani’s Motion to Intervene.48 The Commission
said that should Fragata’s Petition be granted, the votes for Chua would not be counted.49 In effect,
Bacani would garner the sixth highest number of votes among the qualified candidates, which would
earn her a seat in the Sangguniang Panlungsod of Manila.50

With respect to the nature of Fragata’s Petition, the Commission on Elections held that it was one for
disqualification, regardless of the caption stating that it was a petition to declare Chua a nuisance
candidate.51 The Petition alleged a ground for disqualification under Section 40 of the Local
Government Code,52 specifically, that Chua was a permanent resident in the United States.

Since Fragata filed a petition for disqualification, Rule 25, Section 3 of the Commission on Elections
Rules of Procedure governed the period for its filing.53 Under the Rules, a petition for disqualification
should be filed "any day after the last day for filing of certificates of candidacy, but not later than the
date of the proclamation." Fragata filed the Petition within this period, having filed it on the date of
Chua’s proclamation on May 15, 2013.54

The Commission no longer discussed whether Chua was a permanent resident of the United States.
Instead, it found that Chua was a dual citizen when she filed her Certificate of Candidacy.55 Although
she reacquired her Filipino citizenship in 2011 by taking an Oath of Allegiance to the Republic of the
Philippines, petitioner failed to take a sworn and personal renunciation of her American citizenship
required under Section 5(2) of the Citizenship Retention and Re-acquisition Act of 2003.56

Considering that Chua is a dual citizen, the Commission held that Chua was disqualified to run for
Councilor pursuant to Section 40 of the Local Government Code.57 Consequently, Chua’s Certificate
of Candidacy was void ab initio, and all votes casted for her were stray.58 Chua’s proclamation was
likewise voided, and per Maquiling, Bacani was declared to have garnered the sixth highest number
of votes.59

Thus, in the Resolution dated October 17, 2013, the Commission on Elections Second Division ruled
in favor of Fragata and Bacani.60 The dispositive portion of the October 17, 2013 Resolution reads:

WHEREFORE, premises considered, the Commission (Second Division) RESOLVES, as it

hereby RESOLVED:

1. To ANNUL the proclamation of respondent Arlene Llena Empaynado Chua as Councilor

for the Fourth District of Manila;

2. To DIRECT the Board of Canvassers of the City of Manila

to CONVENE and PROCLAIM Intervenor Krystle Marie C. Bacani as the duly elected
Councilor of the Fourth District of the City of Manila, having obtained the sixth highest
number of votes for said position.

Let the Deputy Executive Director for Operations implement this Resolution.
SO ORDERED.61

Chua moved for reconsideration,62 but the Commission on Elections En Banc denied the Motion in
the Resolution dated January 30, 2015.

Arguing that the Commission issued its October 17, 2013 and January 30, 2015 Resolutions with
grave abuse of discretion, Chua filed before this Court a Petition for Certiorari and Prohibition with
prayer for issuance of temporary restraining order and/or writ of preliminary injunction.63 Fragata and
Bacani jointly filed their Comment,64 while the Commission on Elections filed its Comment65 through
the Office of the Solicitor General.

Chua emphasizes that she was already proclaimed as a duly elected Councilor.66 Assuming that she
was ineligible to run for office, this created a permanent vacancy in the Sangguniang Panlungsod,
which was to be filled according to the rule on succession under Section 45 of the Local Government
Code, and not by proclamation of the candidate who garnered the next highest number of votes.67

Chua maintains that Fragata belatedly filed her Petition before the Commission on Elections.68 Since
Fragata filed a Petition to deny due course or cancel certificate of candidacy, it should have been
filed within five (5) days from the last day for filing of certificates of candidacy, but not later than 25
days from the time of the filing of the certificate of candidacy assailed.69 Fragata filed the Petition on
May 15, 2013, more than 25 days after Chua filed her Certificate of Candidacy on October 3,
2012.70 The Commission on Elections, therefore, should have outright dismissed Fragata’s Petition.71

With her already proclaimed, Chua argues that the Commission on Elections should have respected
the voice of the people.72 Chua prays that the Resolutions annulling her proclamation and
subsequently proclaiming Bacani be set aside.73

As for Fragata and Bacani as well as the Commission on Elections, all maintain that Fragata’s
Petition was a petition for disqualification assailing Chua’s citizenship and status as a permanent
resident in the United States.74The Petition, which Fragata filed on the date of Chua’s proclamation,
was filed within the reglementary period.75

The Commission on Elections stresses that Chua was a dual citizen at the time she filed her
Certificate of Candidacy.76 Consequently, she was ineligible to run for Councilor and was correctly
considered a non-candidate. 77All the votes casted in Chua’s favor were correctly disregarded,
resulting in Bacani garnering the next highest number of votes.78 Following Maquiling, the
Commission argues that Bacani was validly proclaimed as Councilor, and, contrary to Chua’s claim,
the rule on succession under Section 45 of the Local Government Code did not apply, with the
disqualifying circumstance existing prior to the filing of the Certificate of Candidacy.79

Although Chua was already proclaimed, the Commission on Elections argues that "[t]he will of the
people as expressed through the ballot cannot cure the vice of ineligibility, especially if they
mistakenly believed that the candidate was qualified."80 Fragata, Bacani, and the Commission on
Elections pray that the Petition for Certiorari and Prohibition be dismissed.81

The issues for this Court’s resolution are the following:

First, whether private respondent Imelda E. Fragata filed a petition for disqualification or a petition to
deny due course or cancel certificate of candidacy; and
Second, whether the rule on succession under Section 45 of the Local Government Code applies to
this case.

We dismiss the Petition. The allegations of private respondent Fragata’s Petition before the
Commission on Elections show that it was a timely filed petition for disqualification. Moreover, the
Commission on Elections did not gravely abuse its discretion in disqualifying petitioner Arlene Llena
Empaynado Chua, annulling her proclamation, and subsequently proclaiming private respondent
Krystle Marie C. Bacani, the candidate who garnered the sixth highest number of votes among the
qualified candidates.

As this Court has earlier observed in Fermin v. Commission on Elections,82 members of the bench
and the bar have "indiscriminately interchanged"83 the remedies of a petition to deny due course or
cancel certificate of candidacy and a petition for disqualification, thus "adding confusion to the
already difficult state of our jurisprudence on election laws."84

The remedies, however, have different grounds and periods for their filing. The remedies have
different legal consequences.

A person files a certificate of candidacy to announce his or her candidacy and to declare his or her
eligibility for the elective office indicated in the certificate.85 Section 74 of the Omnibus Election Code
on the contents of a certificate of candidacy states:

Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is eligible for said
office; if for Member of the Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or section which he seeks to represent; the political party to which he
belongs; civil status; his date of birth; residence; his post office address for all election purposes; his
profession or occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to
the best of his knowledge.

Unless a candidate has officially changed his name through a court approved proceeding, a
candidate shall use in a certificate of candidacy the name by which he has been baptized, or if has
not been baptized in any church or religion, the name registered in the office of the local civil
registrar or any other name allowed under the provisions of existing law or, in the case of a Muslim,
his Hadji name after performing the prescribed religious pilgrimage: Provided, That when there are
two or more candidates for an office with the same name and surname, each candidate, upon being
made aware of such fact, shall state his paternal and maternal surname, except the incumbent who
may continue to use the name and surname stated in his certificate of candidacy when he was
elected. He may also include one nickname or stage name by which he is generally or popularly
known in the locality.

The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a
statement in duplicate containing his bio-data and program of government not exceeding one
hundred words, if he so desires.
The Commission on Elections has the ministerial duty to receive and acknowledge receipt of
certificates of candidacy.86 However, under Section 78 of the Omnibus Election Code,87 the
Commission may deny due course or cancel a certificate of candidacy through a verified petition
filed exclusively on the ground that "any material representation contained therein as required under
Section 74 hereof is false." The "material representation" referred to in Section 78 is that which
involves the eligibility or qualification for the office sought by the person who filed the
certificate.88 Section 78 must, therefore, be read "in relation to the constitutional and statutory
provisions on qualifications or eligibility for public office."89 Moreover, the false representation "must
consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible."90

A person intending to run for public office must not only possess the required qualifications for the
position for which he or she intends to run. The candidate must also possess none of the grounds for
disqualification under the law. As Justice Vicente V. Mendoza said in his Dissenting Opinion
in Romualdez-Marcos v. Commission on Elections,91 "that an individual possesses the qualifications
for a public office does not imply that he is not disqualified from becoming a candidate or continuing
as a candidate for a public office and vice-versa."92

Section 68 of the Omnibus Election Code provides for grounds in filing a petition for disqualification:

Sec. 68 Disqualifications. – Any candidate who, in action or protest in which he is a party is

declared by final decision of a competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws.

Apart from the grounds provided in Section 68, any of the grounds in Section 12 of the Omnibus
Election Code as well as in Section 40 of the Local Government Code may likewise be raised in a
petition for disqualification. Section 12 of the Omnibus Election Code states:

Sec. 12. Disqualifications. – Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for
any offense for which he has been sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless
he has been given plenary pardon or granted amnesty.

This disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence, unless within the same period he
again becomes disqualified.

Disqualifications specifically applicable to those running for local elective positions are found in
Section 40 of the Local Government Code:

SECTION 40. Disqualifications. – The following persons are disqualified from running for any
elective local position:
 (a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

Private respondent Fragata alleges in her Petition that petitioner is a permanent resident in the
United States, a green card holder who, prior to the filing of her Certificate of Candidacy for
Councilor, has resided in the State of Georgia for 33 years. She anchors her Petition on Section 40
of the Local Government Code, which disqualifies permanent residents of a foreign country from
running for any elective local position.

It is true that under Section 74 of the Omnibus Election Code, persons who file their certificates of
candidacy declare that they are not a permanent resident or immigrant to a foreign country.
Therefore, a petition to deny due course or cancel a certificate of candidacy may likewise be filed
against a permanent resident of a foreign country seeking an elective post in the Philippines on the
ground of material misrepresentation in the certificate of candidacy.93

What remedy to avail himself or herself of, however, depends on the petitioner. If the false material
representation in the certificate of candidacy relates to a ground for disqualification, the petitioner
may choose whether to file a petition to deny due course or cancel a certificate of candidacy or a
petition for disqualification, so long as the petition filed complies with the requirements under the
law.94

Before the Commission on Elections, private respondent Fragata had a choice of filing either a
petition to deny due course or cancel petitioner’s certificate of candidacy or a petition for
disqualification. In her Petition, private respondent Fragata did not argue that petitioner made a false
material representation in her Certificate of Candidacy; she asserted that petitioner was a permanent
resident disqualified to run for Councilor under Section 40 of the Local Government Code. Private
respondent Fragata’s Petition, therefore, was a petition for disqualification.

It follows that private respondent Fragata timely filed her Petition before the Commission on
Elections. Under Rule 25, Section 3 of the Rules of Procedure of the Commission, a petition for
disqualification "shall be filed any day after the last day for filing of certificates of candidacy, but not
later that the date of proclamation." Private respondent Fragata filed her Petition on the date of
petitioner’s proclamation on May 15, 2013. The Commission on Elections did not gravely abuse its
discretion in taking cognizance of private respondent Fragata’s Petition.

In addition, the Commission on Elections correctly admitted private respondent Bacani’s pleading-in-
intervention.
An adverse decision against petitioner would require a pronouncement as to who should assume the
position of Councilor. Hence, those who believe that they are entitled to the position may prove their
legal interest in the matter in litigation95 and may properly intervene for a complete disposition of the
case.

Private respondent Bacani claims that she is entitled to the position of Councilor. In her Motion to
Intervene, she argues for petitioner’s disqualification and alleges the circumstances surrounding
petitioner’s dual citizenship. She then cites Maquiling, arguing that she should be proclaimed in lieu
of petitioner because she obtained the sixth highest number of votes among the qualified
candidates. Private respondent Bacani’s intervention was, therefore, proper.

II

The Commission on Elections did not gravely abuse its discretion in disqualifying petitioner,
annulling her proclamation, and subsequently proclaiming private respondent Bacani as the duly
elected Councilor for the Fourth District of Manila.

Petitioner was born to Filipino parents in 1967, which makes her a natural-born Filipino under the
1935 Constitution.96 Ten years later, on December 7, 1977, petitioner became a naturalized
American. Hence, she lost her Filipino citizenship pursuant to Section 1 of Commonwealth Act No.
63.97

It was on September 21, 2011 when petitioner took an Oath of Allegiance to the Republic of the
Philippines, thus reacquiring her Filipino citizenship.98 From September 21, 2011 up to the present,
however, petitioner failed to execute a sworn and personal renunciation of her foreign citizenship
particularly required of those seeking elective public office. Section 5(2) of the Citizenship Retention
and Re-acquisition Act of 2003

provides:

SECTION 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:

....

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding
such public office as required by the Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath[.]

Petitioner cannot claim that she has renounced her American citizenship by taking the Oath of
Allegiance. The oath of allegiance and the sworn and personal renunciation of foreign citizenship are
separate requirements, the latter being an additional requirement for qualification to run for public
office. In Jacot v. Dal:99

[T]he oath of allegiance contained in the Certificate of Candidacy, which is substantially similar to the
one contained in Section 3 of Republic Act No. 9225, does not constitute the personal and sworn
renunciation sought under Section 5(2) of Republic Act No. 9225. It bears to emphasize that the said
oath of allegiance is a general requirement for all those who wish to run as candidates in Philippine
elections; while the renunciation of foreign citizenship is an additional requisite only for those who
have retained or reacquired Philippine citizenship under Republic Act No. 9225 and who seek
elective public posts, considering their special circumstance of having more than one citizenship.100

With petitioner’s failure to execute a personal and sworn renunciation of her American citizenship,
petitioner was a dual citizen at the time she filed her Certificate of Candidacy on October 3, 2012.
Under Section 40 of the Local Government Code, she was disqualified to run for Councilor in the
Fourth District of Manila during the 2013 National and Local Elections.

Petitioner, however, argues that the Commission on Elections gravely abused its discretion in
proclaiming private respondent Bacani, the mere seventh placer among the candidates for Councilor
and, therefore, not the electorate’s choice. Petitioner maintains that the vacancy left by her
disqualification should be filled according to the rule on succession under Section 45(a)(1) of the
Local Government Code, which provides:

SECTION 45. Permanent Vacancies in the Sanggunian. – (a) Permanent vacancies in the
sanggunian where automatic successions provided above do not apply shall be filled by appointment
in the following manner:

(1) The President, through the Executive Secretary, in the case of the sangguniang
panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent
component cities[.]

The permanent vacancies referred to in Section 45 are those arising "when an elective local official
fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his
office."101 In these situations, the vacancies were caused by those whose certificates of candidacy
were valid at the time of the filing "but subsequently had to be cancelled because of a violation of law
that took place, or a legal impediment that took effect, after the filing of the certificate of
candidacy."102

The rule on succession under Section 45, however, would not apply if the permanent vacancy was
caused by one whose certificate of candidacy was void ab initio. Specifically with respect to dual
citizens, their certificates of candidacy are void ab initio because they possess "a substantive
[disqualifying circumstance] . . . [existing] prior to the filing of their certificate of candidacy."103 Legally,
they should not even be considered candidates. The votes casted for them should be considered
stray and should not be counted.104

In cases of vacancies caused by those with void ab initio certificates of candidacy, the person legally
entitled to the vacant position would be the candidate who garnered the next highest number of
votes among those eligible.105 In this case, it is private respondent Bacani who is legally entitled to
the position of Councilor, having garnered the sixth highest number of votes among the eligible
candidates. The Commission on Elections correctly proclaimed private respondent Bacani in lieu of
petitioner.

Petitioner may have garnered more votes than private respondent Bacani. She may have already
been proclaimed. Nevertheless, elections are more than a numbers game. Hence, in Maquiling:

The ballot cannot override the constitutional and statutory requirements for qualifications and
disqualifications of candidates. When the law requires certain qualifications to be possessed or that
certain disqualifications be not possessed by persons desiring to serve as elective public officials,
those qualifications must be met before one even becomes a candidate. When a person who is not
qualified is voted for and eventually garners the highest number of votes, even the will of the
electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate.
To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications
and disqualifications of candidates. We might as well write off our election laws if the voice of the
electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in
our republic.

....

As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are participants who
turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does
not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be
eligible as candidates. 106

All told, petitioner Arlene Llena Empaynado Chua is a dual citizen correctly disqualified from running
for the position of Councilor in the Fourth District of Manila during the 2013 National and Local
elections. With her dual citizenship existing prior to the filing of the certificate of candidacy, her
Certificate of Candidacy was void ab initio. She was correctly considered a non-candidate. All votes
casted for her were stray, and the person legally entitled to the position is private respondent Krystle
Marie C. Bacani, the candidate with the next highest number of votes among the eligible candidates.
The Commission on Elections did not gravely abuse its discretion in annulling Chua's proclamation
and subsequently proclaiming private respondent Bacani.

WHEREFORE, the Petition for Certiorari and Prohibition is DISMISSED. This Decision is
immediately executory.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice
 JOSE CATRAL MENDOZA BIENVENIDO L. REYES
Associate Justice Associate Justice

On leave
FRANCIS H. JARDELEZA
ESTELA M. PERLAS-BERNABE*
Associate Justice
Associate Justice

ALFREDO BENJAMIN S. CAGUIOA

Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the court.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*
On leave.

1
Rollo, pp. 3–19.

2
Id. at 32–52. The Resolution was signed by Presiding Commissioner Elias R. Yusoph and
Commissioners Maria Gracia Cielo M. Padaca and Luie Tito F. Guia of the Second Division.

3
Id. at 22–31. The Resolution was signed by Chairman Sixto S. Brillantes, Jr. and
Commissioners Lucenito N. Tagle, Elias R. Yusoph, Christian Robert S. Lim, Al A. Parreño,
Luie Tito F. Guia, and Arthur D. Lim of the COMELEC En Banc.

4
Id. at 51, COMELEC Second Division Resolution dated October 17, 2013.

5
Id.

6
Id. at 100.

7
Rep. Act. No. 7166 (1991), sec. 3(c), in relation to Rep. Act No. 6636 (1987), sec. 2.

Rep. Act No. 7166 (1991), sec. 3(c) provides:

Section 3. Election of Members of the Sangguniang Panlalawigan, Sangguniang

Panlungsod and Sangguniang Bayan. - The elective members of the Sangguniang
 Panlalawigan, Sangguniang Panlungsod and Sangguniang Bayan shall be elected
as follows:

....

c. The number and election of elective members of the Sangguniang Panlungsod

and Sangguniang Bayan in the Metro Manila Area, City of Cebu, City of Davao and
any other city with two (2) or more legislative districts shall continue to be governed
by the provisions of Sections 2 and 3 of Republic Act No. 6636: Provided, That, the
Municipalities of Malabon, Navotas, San Juan, Mandaluyong, Muntinlupa, Las Piñas
and Taguig shall have twelve (12) councilors, and Pateros, ten (10): Provided,
further, That, the Commission shall divide each of the municipalities in Metro Manila
Area into two (2) districts by barangay for purposes of representation in the
Sangguniang Bayan as nearly as practicable according to the number of inhabitants,
each comprising a compact, contiguous and adjacent territory[.]

Rep. Act No. 6636 (1987), sec. 2 provides:

Section 2. Metro Manila Area. - For purposes of the Local Elections on January 18,
1988, the City of Manila, Quezon City and the City of Caloocan shall have six (6)
councilors for each of their representative districts who shall be residents thereof to
be elected by the qualified voters therein. The City of Pasay and the Municipalities of
Makati, Parañaque, Pasig, Marikina, and Valenzuela, each of which comprises a
representative district, shall have twelve (12) councilors each to be elected at large
by the qualified voters of the said city or municipality. All the other municipalities
within the Metropolitan Manila area shall have ten (10) councilors each, with the
exception of the Municipality of Pateros which shall have eight (8) councilors, to be
elected at large by their respective qualified voters.

8
Rollo, p. 23, COMELEC En Banc Resolution dated January 30, 2015.

9
Id.

10
Id. at 95–98.

11
Id. at 95.

12
Id.

13
Id.

14
Id. at 96.

15
Id.

16
Id. at 97.

17
Id. at 104, Verified Answer.

18
Id. at 118, Barangay Certification dated May 21, 2010.
19
Id. at 110, Verified Answer.

20
Id. at 106–107.

21
COMELEC Rules of Procedure, as amended by Resolution No. 9523, rule 24, sec. 3
provides:

Section 3. Period to File the Petition. – The Petition shall be filed personally or
through an authorized representative, within five (5) days from the last day for the
filing of certificates of candidacy. In case of a substitute candidate, the Petition must
be filed within five (5) days from the time the substitute candidate filed his certificate
of candidacy.

22
COMELEC Rules of Procedure, as amended by Resolution No. 9523, rule 23, sec. 2
provides:

Section 2. Period to File Petition. – The Petition must be filed within five (5) days
from the last day for filing of certificate of candidacy; but not later than twenty five
(25) days from the time of filing of the certificate of candidacy subject of the Petition.
In case of a substitute candidate, the Petition must be filed within five (5) days from
the time the substitute candidate filed his certificate of candidacy.

23
Rollo, p. 107, Verified Answer.

24
Id. at 100, Certificate of Candidacy.

25
Id. at 109, Verified Answer.

26
Id. at 111.

27
Id. at 112.

28
Id. at 133–140.

29
Id. at 133.

30
Id. at 136–137.

31
709 Phil. 408 (2013) [Per C.J. Sereno, En Banc].

32
Rollo, p. 134, Motion to Intervene with Manifestation and Motion to Annul Proclamation.

33
Id.

34
Id. at 129.

35
Id. at 134, Motion to Intervene with Manifestation and Motion to Annul Proclamation.

36
Id. at 135.
37
Id.

38
Id. at 137.

39
Id. at 146–153.

40
Id. at 149–152.

41
Id. at 151.

42
Id. at 152.

43
Id. at 24, COMELEC En Banc Resolution dated January 30, 2015.

44
Id. at 175–196.

45
Id. at186.

46
Id. at190–191.

47
Id. at 154–169.

48
Id. at 39–41, COMELEC Second Division Resolution dated October 17, 2013.

49
Id.

50
Id.

51
Id. at 41–42.

52
Id.

53
Id.

54
Id. at 42, COMELEC Second Division Resolution dated October 17, 2013.

55
Id. at 46.

56
Id. at 43–44.

57
Id. at 50–51.

58
Id. at 51.

59
Id. at 47–51.

60
Id. at 51.

61
Id.
62
Id. at 53–69.

63
Id. at 3–4, Urgent Petition for Certiorari and Prohibition.

64
Id. at 205–215.

65
Id. at 219–238.

66
Id. at 13, Urgent Petition for Certiorari and Prohibition.

67
Id. at 9–11.

68
Id. at 11.

69
Id. at 13.

70
Id.

71
Id.

72
Id. at 13–15.

73
Id. at 16–17.

74
Id. at 210, Fragata and Bacani’s Joint Comment, and 231, COMELEC’s Comment.

75
Id.

76
Id. at 227–228, COMELEC’s Comment.

77
Id. at 228 and 235.

78
Id. at 235.

79
Id. at 233–235.

80
Id. at 236.

81
Id. at 212, Fragata and Bacani’s Joint Comment, and 237, COMELEC’s Comment.

82
595 Phil. 449 (2008) [Per J. Nachura, En Banc].

83
Id. at 457.

84
Id.

85
ELECTION CODE, sec. 74.

86
ELECTION CODE, sec. 76.
87
ELECTION CODE, sec. 78 provides:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A

verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by the person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The petition may be
filed at any time not later than twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election.

Villafuerte v. Commission on Elections, G.R. No. 206698, February 25, 2014, 717 SCRA
88

312, 323 [Per J. Peralta, En Banc].

Fermin v. Commission on Elections, 595 Phil. 449, 465–466 (2008) [Per J. Nachura, En
89

Banc].

Villafuerte v. Commission on Elections, G.R. No. 206698, February 25, 2014, 717 SCRA
90

312, 323 [Per J. Peralta, En Banc].

91
318 Phil. 329 (1995) [Per J. Kapunan, En Banc].

J. Mendoza, Dissenting Opinion in Romualdez-Marcos v. Commission on Elections, 318

92

Phil. 329, 464–465 (1995) [Per J. Kapunan, En Banc].

See Jalosjos, Jr. v. Commission on Elections, 696 Phil. 601, 632 (2012) [Per J. Carpio, En
93

Banc].

94
Id.

95
COMELEC Rules of Procedure, rule 8, sec. 1 provides:

Section 1. When Proper and Who may be Permitted to Intervene. – Any person
allowed to initiate an action or proceeding may, before or during the trial of an action
or proceeding, be permitted by the Commission, in its discretion, to intervene in such
action or proceeding, if he has legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or when he is so situated
as to be adversely affected by such action or proceeding.

96
CONST. (1935), art. IV, sec. 1 provides:

Sec. 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippine Islands at the time of the
adoption of this Constitution.

(2) Those born in the Philippine Islands of foreign parents who, before the
adoption of this Constitution, had been elected to public office in the
Philippine Islands.

(3) Those whose fathers are citizens of the Philippines.

 (4) Those whose mothers are citizens of the Philippines and, upon reaching
the age of majority, elect Philippine citizenship.

(5) Those who are naturalized in accordance with law.

97
Com. Act No. 63 (1936), sec. 1 provides:

Sec. 1. How citizenship may be lost. — A Filipino citizen may lose his citizenship in
any of the following ways and/or events:

(1) By naturalization in a foreign country[.]

98
Rep. Act No. 9225 (2003), sec. 3 provides:

Sec. 3. Retention of Philippine Citizenship. — Any provision of law to the contrary

notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are
hereby deemed to have re-acquired Philippine citizenship upon taking the following
oath of allegiance to the Republic:

"I _________________, solemnly swear (or affirm) that I will support and
defend the Constitution of the Republic of the Philippines and obey the laws
and legal orders promulgated by the duly constituted authorities of the
Philippines, and I hereby declare that I recognize and accept the supreme
authority of the Philippines and will maintain true faith and allegiance thereto;
and that I impose this obligation upon myself voluntarily without mental
reservation or purpose of evasion." Natural-born citizens of the Philippines
who, after the effectivity of this Act, become citizens of a foreign country shall
retain their Philippine citizenship upon taking the aforesaid oath.

99
592 Phil. 661 (2008) [Per J. Chico-Nazario, En Banc].

100
Id. at 673.

101
LOCAL GOVT. CODE, sec. 44.

See Jalosjos, Jr. v. Commission on Elections, 696 Phil. 601, 633 (2012) [Per J. Carpio, En
102

Banc].

Maquiling v. Commission on Elections, 709 Phil. 408, 448 (2013) [Per C.J. Sereno, En
103

Banc].

104
Id. at 450.

105
Id. at 447–450.

106
Id. at 444-447.
G.R. No. 137000 August 9, 2000

CIRILO R. VALLES, petitioner,

vs.
COMMISSION ON ELECTIONS and ROSALIND YBASCO LOPEZ, respondents.

DECISION

PURISIMA, J.:

This is a petition for certiorari under Rule 65, pursuant to Section 2, Rule 64 of the 1997 Rules of
Civil Procedure, assailing Resolutions dated July 17, 1998 and January 15, 1999, respectively, of
the Commission on Elections in SPA No. 98-336, dismissing the petition for disqualification filed by
the herein petitioner, Cirilo R. Valles, against private respondent Rosalind Ybasco Lopez, in the May
1998 elections for governor of Davao Oriental.

Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to
the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa
Marquez, an Australian. In 1949, at the age of fifteen, she left Australia and came to settle in the
Philippines.

On June 27, 1952, she was married to Leopoldo Lopez, a Filipino citizen, at the Malate Catholic
Church in Manila. Since then, she has continuously participated in the electoral process not only as
a voter but as a candidate, as well. She served as Provincial Board Member of the Sangguniang
Panlalawigan of Davao Oriental. In 1992, she ran for and was elected governor of Davao Oriental.
Her election was contested by her opponent, Gil Taojo, Jr., in a petition for quo warranto, docketed
as EPC No. 92-54, alleging as ground therefor her alleged Australian citizenship. However, finding
no sufficient proof that respondent had renounced her Philippine citizenship, the Commission on
Elections en banc dismissed the petition, ratiocinating thus:

"A cursory reading of the records of this case vis-a-vis the impugned resolution shows that
respondent was able to produce documentary proofs of the Filipino citizenship of her late father...
and consequently, prove her own citizenship and filiation by virtue of the Principle of Jus Sanguinis,
the perorations of the petitioner to the contrary notwithstanding.

On the other hand, except for the three (3) alleged important documents . . . no other evidence
substantial in nature surfaced to confirm the allegations of petitioner that respondent is an Australian
citizen and not a Filipino. Express renunciation of citizenship as a mode of losing citizenship under
Commonwealth Act No. 63 is an equivocal and deliberate act with full awareness of its significance
and consequence. The evidence adduced by petitioner are inadequate, nay meager, to prove that
respondent contemplated renunciation of her Filipino citizenship".1

In the 1995 local elections, respondent Rosalind Ybasco Lopez ran for re-election as governor of
Davao Oriental. Her opponent, Francisco Rabat, filed a petition for disqualification, docketed as SPA
No. 95-066 before the COMELEC, First Division, contesting her Filipino citizenship but the said
petition was likewise dismissed by the COMELEC, reiterating substantially its decision in EPC 92-54.

The citizenship of private respondent was once again raised as an issue when she ran for re-
election as governor of Davao Oriental in the May 11, 1998 elections. Her candidacy was questioned
by the herein petitioner, Cirilo Valles, in SPA No. 98-336.
On July 17, 1998, the COMELEC’s First Division came out with a Resolution dismissing the petition,
and disposing as follows:

"Assuming arguendo that res judicata does not apply and We are to dispose the instant case on the
merits trying it de novo, the above table definitely shows that petitioner herein has presented no new
evidence to disturb the Resolution of this Commission in SPA No. 95-066. The present petition
merely restates the same matters and incidents already passed upon by this Commission not just in
1995 Resolution but likewise in the Resolution of EPC No. 92-54. Not having put forth any new
evidence and matter substantial in nature, persuasive in character or sufficiently provocative to
compel reversal of such Resolutions, the dismissal of the present petition follows as a matter of
course.

xxx xxx xxx

"WHEREFORE, premises considered and there being no new matters and issues tendered, We find
no convincing reason or impressive explanation to disturb and reverse the Resolutions promulgated
by this Commission in EPC 92-54 and SPA. 95-066. This Commission RESOLVES as it hereby
RESOLVES to DISMISS the present petition.

SO ORDERED."2

Petitioner interposed a motion for reconsideration of the aforesaid Resolution but to no avail. The
same was denied by the COMELEC in its en banc Resolution of January 15, 1999.

Undaunted, petitioner found his way to this Court via the present petition; questioning the citizenship
of private respondent Rosalind Ybasco Lopez.

The Commission on Elections ruled that private respondent Rosalind Ybasco Lopez is a Filipino
citizen and therefore, qualified to run for a public office because (1) her father, Telesforo Ybasco, is
a Filipino citizen, and by virtue of the principle of jus sanguinis she was a Filipino citizen under the
1987 Philippine Constitution; (2) she was married to a Filipino, thereby making her also a Filipino
citizen ipso jure under Section 4 of Commonwealth Act 473; (3) and that, she renounced her
Australian citizenship on January 15, 1992 before the Department of Immigration and Ethnic Affairs
of Australia and her Australian passport was accordingly cancelled as certified to by the Australian
Embassy in Manila; and (4) furthermore, there are the COMELEC Resolutions in EPC No. 92-54 and
SPA Case No. 95-066, declaring her a Filipino citizen duly qualified to run for the elective position of
Davao Oriental governor.

Petitioner, on the other hand, maintains that the private respondent is an Australian citizen, placing
reliance on the admitted facts that:

a) In 1988, private respondent registered herself with the Bureau of Immigration as an

Australian national and was issued Alien Certificate of Registration No. 404695 dated
September 19, 1988;

b) On even date, she applied for the issuance of an Immigrant Certificate of Residence
(ICR), and

c) She was issued Australian Passport No. H700888 on March 3, 1988.

Petitioner theorizes that under the aforestated facts and circumstances, the private respondent had
renounced her Filipino citizenship. He contends that in her application for alien certificate of
registration and immigrant certificate of residence, private respondent expressly declared under oath
that she was a citizen or subject of Australia; and said declaration forfeited her Philippine citizenship,
and operated to disqualify her to run for elective office.

As regards the COMELEC’s finding that private respondent had renounced her Australian citizenship
on January 15, 1992 before the Department of Immigration and Ethnic Affairs of Australia and had
her Australian passport cancelled on February 11, 1992, as certified to by the Australian Embassy
here in Manila, petitioner argues that the said acts did not automatically restore the status of private
respondent as a Filipino citizen. According to petitioner, for the private respondent to reacquire
Philippine citizenship she must comply with the mandatory requirements for repatriation under
Republic Act 8171; and the election of private respondent to public office did not mean the
restoration of her Filipino citizenship since the private respondent was not legally repatriated.
Coupled with her alleged renunciation of Australian citizenship, private respondent has effectively
become a stateless person and as such, is disqualified to run for a public office in the Philippines;
petitioner concluded.

Petitioner theorizes further that the Commission on Elections erred in applying the principle of res
judicata to the case under consideration; citing the ruling in Moy Ya Lim Yao vs. Commissioner of
Immigration,3 that:

"xxx Everytime the citizenship of a person is material or indispensable in a judicial or administrative

case, whatever the corresponding court or administrative authority decides therein as to such
citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and
again as the occasion may demand. xxx"

The petition is unmeritorious.

The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child
follows the nationality or citizenship of the parents regardless of the place of his/her birth, as
opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of place of
birth.

Private respondent Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome,
Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet,
Camarines Norte, and Theresa Marquez, an Australian. Historically, this was a year before the 1935
Constitution took into effect and at that time, what served as the Constitution of the Philippines were
the principal organic acts by which the United States governed the country. These were the
Philippine Bill of July 1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known as
the Jones Law.

Among others, these laws defined who were deemed to be citizens of the Philippine islands. The
Philippine Bill of 1902 defined Philippine citizens as:

SEC. 4 xxx all inhabitants of the Philippine Islands continuing to reside therein who were Spanish
subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in the
Philippine Islands, and their children born subsequent thereto, shall be deemed and held to be
citizens of the Philippine Islands and as such entitled to the protection of the United States, except
such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the
provisions of the treaty of peace between the United States and Spain signed at Paris December
tenth, eighteen hundred and ninety-eight. (underscoring ours)
The Jones Law, on the other hand, provides:

SEC. 2 That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day
of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born
subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, except such
as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the
provisions of the treaty of peace between the United States and Spain, signed at Paris December
tenth, eighteen hundred and ninety-eight, and except such others as have since become citizens of
some other country: Provided, That the Philippine Legislature, herein provided for, is hereby
authorized to provide by law for the acquisition of Philippine citizenship by those natives of the
Philippine Islands who cannot come within the foregoing provisions, the natives of the insular
possessions of the United States, and such other persons residing in the Philippine Islands who are
citizens of the United States, or who could become citizens of the United States under the laws of
the United States if residing therein. (underscoring ours)

Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11,
1899 and resided therein including their children are deemed to be Philippine citizens. Private
respondent’s father, Telesforo Ybasco, was born on January 5, 1879 in Daet, Camarines Norte, a
fact duly evidenced by a certified true copy of an entry in the Registry of Births. Thus, under the
Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a Philippine citizen.
By virtue of the same laws, which were the laws in force at the time of her birth, Telesforo’s
daughter, herein private respondent Rosalind Ybasco Lopez, is likewise a citizen of the Philippines.

The signing into law of the 1935 Philippine Constitution has established the principle of jus
sanguinis as basis for the acquisition of Philippine citizenship, to wit:

(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution.

(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this
Constitution had been elected to public office in the Philippine Islands.

(3) Those whose fathers are citizens of the Philippines.

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of
majority, elect Philippine citizenship.

(5) Those who are naturalized in accordance with law.

So also, the principle of jus sanguinis, which confers citizenship by virtue of blood relationship, was
subsequently retained under the 19734 and 19875 Constitutions. Thus, the herein private respondent,
Rosalind Ybasco Lopez, is a Filipino citizen, having been born to a Filipino father. The fact of her
being born in Australia is not tantamount to her losing her Philippine citizenship. If Australia follows
the principle of jus soli, then at most, private respondent can also claim Australian citizenship
resulting to her possession of dual citizenship.

Petitioner also contends that even on the assumption that the private respondent is a Filipino citizen,
she has nonetheless renounced her Philippine citizenship. To buttress this contention, petitioner
cited private respondent’s application for an Alien Certificate of Registration (ACR) and Immigrant
Certificate of Residence (ICR), on September 19, 1988, and the issuance to her of an Australian
passport on March 3, 1988.
Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship:

(1) By naturalization in a foreign country;

(2) By express renunciation of citizenship;

(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign

country upon attaining twenty-one years of age or more;

(4) By accepting commission in the military, naval or air service of a foreign country;

(5) By cancellation of the certificate of naturalization;

(6) By having been declared by competent authority, a deserter of the Philippine armed
forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted:
and

(7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in force in
her husband’s country, she acquires his nationality.

In order that citizenship may be lost by renunciation, such renunciation must be express. Petitioner’s
contention that the application of private respondent for an alien certificate of registration, and her
Australian passport, is bereft of merit. This issue was put to rest in the case of Aznar vs.
COMELEC6 and in the more recent case of Mercado vs. Manzano and COMELEC.7

In the case of Aznar, the Court ruled that the mere fact that respondent Osmena was a holder of a
certificate stating that he is an American did not mean that he is no longer a Filipino, and that an
application for an alien certificate of registration was not tantamount to renunciation of his Philippine
citizenship.

And, in Mercado vs. Manzano and COMELEC, it was held that the fact that respondent Manzano
was registered as an American citizen in the Bureau of Immigration and Deportation and was
holding an American passport on April 22, 1997, only a year before he filed a certificate of candidacy
for vice-mayor of Makati, were just assertions of his American nationality before the termination of
his American citizenship.

Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian
passport and had an alien certificate of registration are not acts constituting an effective renunciation
of citizenship and do not militate against her claim of Filipino citizenship. For renunciation to
effectively result in the loss of citizenship, the same must be express.8 As held by this court in the
aforecited case of Aznar, an application for an alien certificate of registration does not amount to an
express renunciation or repudiation of one’s citizenship. The application of the herein private
respondent for an alien certificate of registration, and her holding of an Australian passport, as in the
case of Mercado vs. Manzano, were mere acts of assertion of her Australian citizenship before she
effectively renounced the same. Thus, at the most, private respondent had dual citizenship - she
was an Australian and a Filipino, as well.

Moreover, under Commonwealth Act 63, the fact that a child of Filipino parent/s was born in another
country has not been included as a ground for losing one’s Philippine citizenship. Since private
respondent did not lose or renounce her Philippine citizenship, petitioner’s claim that respondent
must go through the process of repatriation does not hold water.
Petitioner also maintains that even on the assumption that the private respondent had dual
citizenship, still, she is disqualified to run for governor of Davao Oriental; citing Section 40 of
Republic Act 7160 otherwise known as the Local Government Code of 1991, which states:

"SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local
position:

xxx xxx xxx

(d) Those with dual citizenship;

xxx xxx xxx

Again, petitioner’s contention is untenable.

In the aforecited case of Mercado vs. Manzano, the Court clarified "dual citizenship" as used in the
Local Government Code and reconciled the same with Article IV, Section 5 of the 1987 Constitution
on dual allegiance.9Recognizing situations in which a Filipino citizen may, without performing any
act, and as an involuntary consequence of the conflicting laws of different countries, be also a citizen
of another state, the Court explained that dual citizenship as a disqualification must refer to citizens
with dual allegiance. The Court succinctly pronounced:

"xxx the phrase ‘dual citizenship’ in R.A. No. 7160, xxx 40 (d) and in R.A. No. 7854, xxx 20 must be
understood as referring to ‘dual allegiance’. Consequently, persons with mere dual citizenship do not
fall under this disqualification."

Thus, the fact that the private respondent had dual citizenship did not automatically disqualify her
from running for a public office. Furthermore, it was ruled that for candidates with dual citizenship, it
is enough that they elect Philippine citizenship upon the filing of their certificate of candidacy, to
terminate their status as persons with dual citizenship.10The filing of a certificate of candidacy
sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual
citizen.11 This is so because in the certificate of candidacy, one declares that he/she is a Filipino
citizen and that he/she will support and defend the Constitution of the Philippines and will maintain
true faith and allegiance thereto. Such declaration, which is under oath, operates as an effective
renunciation of foreign citizenship. Therefore, when the herein private respondent filed her certificate
of candidacy in 1992, such fact alone terminated her Australian citizenship.

Then, too, it is significant to note that on January 15 1992, private respondent executed a
Declaration of Renunciation of Australian Citizenship, duly registered in the Department of
Immigration and Ethnic Affairs of Australia on May 12, 1992. And, as a result, on February 11, 1992,
the Australian passport of private respondent was cancelled, as certified to by Second Secretary
Richard F. Munro of the Embassy of Australia in Manila. As aptly appreciated by the COMELEC, the
aforesaid acts were enough to settle the issue of the alleged dual citizenship of Rosalind Ybasco
Lopez. Since her renunciation was effective, petitioner’s claim that private respondent must go
through the whole process of repatriation holds no water.

Petitioner maintains further that when citizenship is raised as an issue in judicial or administrative
proceedings, the resolution or decision thereon is generally not considered res judicata in any
subsequent proceeding challenging the same; citing the case of Moy Ya Lim Yao vs. Commissioner
of Immigration.12 He insists that the same issue of citizenship may be threshed out anew.
Petitioner is correct insofar as the general rule is concerned, i.e. the principle of res
judicata generally does not apply in cases hinging on the issue of citizenship. However, in the case
of Burca vs. Republic,13 an exception to this general rule was recognized. The Court ruled in that
case that in order that the doctrine of res judicata may be applied in cases of citizenship, the
following must be present:

1) a person’s citizenship be raised as a material issue in a controversy where said person is

a party;

2) the Solicitor General or his authorized representative took active part in the resolution
thereof, and

3) the finding on citizenship is affirmed by this Court.

Although the general rule was set forth in the case of Moy Ya Lim Yao, the case did not foreclose
the weight of prior rulings on citizenship. It elucidated that reliance may somehow be placed on
these antecedent official findings, though not really binding, to make the effort easier or
simpler.14 Indeed, there appears sufficient basis to rely on the prior rulings of the Commission on
Elections in SPA. No. 95-066 and EPC 92-54 which resolved the issue of citizenship in favor of the
herein private respondent. The evidence adduced by petitioner is substantially the same evidence
presented in these two prior cases. Petitioner failed to show any new evidence or supervening event
to warrant a reversal of such prior resolutions. However, the procedural issue notwithstanding,
considered on the merits, the petition cannot prosper.

WHEREFORE, the petition is hereby DISMISSED and the COMELEC Resolutions, dated July 17,
1998 and January 15, 1999, respectively, in SPA No. 98-336 AFFIRMED.

Private respondent Rosalind Ybasco Lopez is hereby adjudged qualified to run for governor of
Davao Oriental. No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., abroad on official business.

Footnotes

1
Rollo, p. 31.

2
Rollo, pp. 57-58.

3
141 SCRA 292, 367.

4
Article III, Section 1. The following are citizens of the Philippines:

1.....Those who are citizens of the Philippines at the time of the adoption of this
Constitution.
 2.....Those whose fathers or mothers are citizens of the Philippines.

3.....Those who elect Philippine citizenship pursuant to the provisions of the

Constitution of nineteen hundred and thirty-five.

4.....Those who are naturalized in accordance with law.

5
Article IV, Section 1. The following are citizens of the Philippines:

1.....Those who are citizens of the Philippines at the time of the adoption of this
Constitution

2.....Those whose fathers and mothers are citizens of the Philippines.

3.....Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and

4.....Those who are naturalized in accordance with law.

6
185 SCRA 703.

7
G.R. No. 135083, May 26, 1999.

8
Commonwealth Act 63, Section 1.

9
"Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law."

10
Mercado vs. Manzano, supra.

11
Ibid.

12
41 SCRA 292, supra.

13
51 SCRA 248.

14
Moy Ya Lim Yao, supra, pp. 366-367.
G.R. No. 187567 February 15, 2012

THE REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
NORA FE SAGUN, Respondent.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari filed by the Solicitor General on behalf of the Republic
of the Philippines, seeking the reversal of the April 3, 2009 Decision1 of the Regional Trial Court
(RTC), Branch 3, of Baguio City in Spcl. Pro. Case No. 17-R. The RTC granted the petition2 filed by
respondent Nora Fe Sagun entitled "In re: Judicial Declaration of Election of Filipino Citizenship,
Nora Fe Sagun v. The Local Civil Registrar of Baguio City."

The facts follow:

Respondent is the legitimate child of Albert S. Chan, a Chinese national, and Marta Borromeo, a
Filipino citizen. She was born on August 8, 1959 in Baguio City3 and did not elect Philippine
citizenship upon reaching the age of majority. In 1992, at the age of 33 and after getting married to
Alex Sagun, she executed an Oath of Allegiance4 to the Republic of the Philippines. Said document
was notarized by Atty. Cristeta Leung on December 17, 1992, but was not recorded and registered
with the Local Civil Registrar of Baguio City.

Sometime in September 2005, respondent applied for a Philippine passport. Her application was
denied due to the citizenship of her father and there being no annotation on her birth certificate that
she has elected Philippine citizenship. Consequently, she sought a judicial declaration of her
election of Philippine citizenship and prayed that the Local Civil Registrar of Baguio City be ordered
to annotate the same on her birth certificate.

In her petition, respondent averred that she was raised as a Filipino, speaks Ilocano and Tagalog
fluently and attended local schools in Baguio City, including Holy Family Academy and the Saint
Louis University. Respondent claimed that despite her part-Chinese ancestry, she always thought of
herself as a Filipino. She is a registered voter of Precinct No. 0419A of Barangay Manuel A. Roxas
in Baguio City and had voted in local and national elections as shown in the Voter
Certification5 issued by Atty. Maribelle Uminga of the Commission on Elections of Baguio City.

She asserted that by virtue of her positive acts, she has effectively elected Philippine citizenship and
such fact should be annotated on her record of birth so as to entitle her to the issuance of a
Philippine passport.

On August 7, 2007, the Office of the Solicitor General (OSG) entered its appearance as counsel for
the Republic of the Philippines and authorized the City Prosecutor of Baguio City to appear in the
above mentioned case.6 However, no comment was filed by the City Prosecutor.

After conducting a hearing, the trial court rendered the assailed Decision on April 3, 2009 granting
the petition and declaring respondent a Filipino citizen. The fallo of the decision reads:

WHEREFORE, the instant petition is hereby GRANTED. Petitioner Nora Fe Sagun y Chan is hereby
DECLARED [a] FILIPINO CITIZEN, having chosen or elected Filipino citizenship.
Upon payment of the required fees, the Local Civil Registrar of Baguio City is hereby directed to
annotate [on] her birth certificate, this judicial declaration of Filipino citizenship of said petitioner.

IT IS SO ORDERED.7

Contending that the lower court erred in so ruling, petitioner, through the OSG, directly filed the
instant recourse viaa petition for review on certiorari before us. Petitioner raises the following issues:

Whether or not an action or proceeding for judicial declaration of Philippine citizenship is

procedurally and jurisdictionally permissible; and,

II

Whether or not an election of Philippine citizenship, made twelve (12) years after reaching
the age of majority, is considered to have been made "within a reasonable time" as
interpreted by jurisprudence.8

Petitioner argues that respondent’s petition before the RTC was improper on two counts: for one,
law and jurisprudence clearly contemplate no judicial action or proceeding for the declaration of
Philippine citizenship; and for another, the pleaded registration of the oath of allegiance with the
local civil registry and its annotation on respondent’s birth certificate are the ministerial duties of the
registrar; hence, they require no court order. Petitioner asserts that respondent’s petition before the
trial court seeking a judicial declaration of her election of Philippine citizenship undeniably entails a
determination and consequent declaration of her status as a Filipino citizen which is not allowed
under our legal system. Petitioner also argues that if respondent’s intention in filing the petition is
ultimately to have her oath of allegiance registered with the local civil registry and annotated on her
birth certificate, then she does not have to resort to court proceedings.

Petitioner further argues that even assuming that respondent’s action is sanctioned, the trial court
erred in finding respondent as having duly elected Philippine citizenship since her purported election
was not in accordance with the procedure prescribed by law and was not made within a "reasonable
time." Petitioner points out that while respondent executed an oath of allegiance before a notary
public, there was no affidavit of her election of Philippine citizenship. Additionally, her oath of
allegiance which was not registered with the nearest local civil registry was executed when she was
already 33 years old or 12 years after she reached the age of majority. Accordingly, it was made
beyond the period allowed by law.

In her Comment,9 respondent avers that notwithstanding her failure to formally elect Filipino
citizenship upon reaching the age of majority, she has in fact effectively elected Filipino citizenship
by her performance of positive acts, among which is the exercise of the right of suffrage. She claims
that she had voted and participated in all local and national elections from the time she was of legal
age. She also insists that she is a Filipino citizen despite the fact that her "election" of Philippine
citizenship was delayed and unregistered.

In reply,10 petitioner argues that the special circumstances invoked by respondent, like her continuous
and uninterrupted stay in the Philippines, her having been educated in schools in the country, her
choice of staying here despite the naturalization of her parents as American citizens, and her being a
registered voter, cannot confer on her Philippine citizenship as the law specifically provides the
requirements for acquisition of Philippine citizenship by election.
Essentially, the issues for our resolution are: (1) whether respondent’s petition for declaration of
election of Philippine citizenship is sanctioned by the Rules of Court and jurisprudence; (2) whether
respondent has effectively elected Philippine citizenship in accordance with the procedure
prescribed by law.

The petition is meritorious.

At the outset, it is necessary to stress that a direct recourse to this Court from the decisions, final
resolutions and orders of the RTC may be taken where only questions of law are raised or involved.
There is a question of law when the doubt or difference arises as to what the law is on a certain state
of facts, which does not call for an examination of the probative value of the evidence presented by
the parties-litigants. On the other hand, there is a question of fact when the doubt or controversy
arises as to the truth or falsity of the alleged facts. Simply put, when there is no dispute as to fact,
the question of whether the conclusion drawn therefrom is correct or not, is a question of law.11

In the present case, petitioner assails the propriety of the decision of the trial court declaring
respondent a Filipino citizen after finding that respondent was able to substantiate her election of
Filipino citizenship. Petitioner contends that respondent’s petition for judicial declaration of election
of Philippine citizenship is procedurally and jurisdictionally impermissible. Verily, petitioner has
raised questions of law as the resolution of these issues rest solely on what the law provides given
the attendant circumstances.

In granting the petition, the trial court stated:

This Court believes that petitioner was able to fully substantiate her petition regarding her election of
Filipino citizenship, and the Local Civil Registrar of Baguio City should be ordered to annotate in her
birth certificate her election of Filipino citizenship. This Court adds that the petitioner’s election of
Filipino citizenship should be welcomed by this country and people because the petitioner has the
choice to elect citizenship of powerful countries like the United States of America and China,
however, petitioner has chosen Filipino citizenship because she grew up in this country, and has
learned to love the Philippines. Her choice of electing Filipino citizenship is, in fact, a testimony that
many of our people still wish to live in the Philippines, and are very proud of our country.

WHEREFORE, the instant petition is hereby GRANTED. Petitioner Nora Fe Sagun y Chan is hereby
DECLARED as FILIPINO CITIZEN, having chosen or elected Filipino citizenship.12

For sure, this Court has consistently ruled that there is no proceeding established by law, or the
Rules for the judicial declaration of the citizenship of an individual.13 There is no specific legislation
authorizing the institution of a judicial proceeding to declare that a given person is part of our
citizenry.14 This was our ruling in Yung Uan Chu v. Republic15citing the early case of Tan v. Republic
of the Philippines,16 where we clearly stated:

Under our laws, there can be no action or proceeding for the judicial declaration of the citizenship of
an individual. Courts of justice exist for settlement of justiciable controversies, which imply a given
right, legally demandable and enforceable, an act or omission violative of said right, and a remedy,
granted or sanctioned by law, for said breach of right. As an incident only of the adjudication of the
rights of the parties to a controversy, the court may pass upon, and make a pronouncement relative
to their status. Otherwise, such a pronouncement is beyond judicial power. x x x

Clearly, it was erroneous for the trial court to make a specific declaration of respondent’s Filipino
citizenship as such pronouncement was not within the court’s competence.
As to the propriety of respondent’s petition seeking a judicial declaration of election of Philippine
citizenship, it is imperative that we determine whether respondent is required under the law to make
an election and if so, whether she has complied with the procedural requirements in the election of
Philippine citizenship.

When respondent was born on August 8, 1959, the governing charter was the 1935 Constitution,
which declares as citizens of the Philippines those whose mothers are citizens of the Philippines and
elect Philippine citizenship upon reaching the age of majority. Sec. 1, Art. IV of the 1935
Constitution reads:

Section 1. The following are citizens of the Philippines:

xxxx

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority,
elect Philippine citizenship.

Under Article IV, Section 1(4) of the 1935 Constitution, the citizenship of a legitimate child born of a
Filipino mother and an alien father followed the citizenship of the father, unless, upon reaching the
age of majority, the child elected Philippine citizenship. The right to elect Philippine citizenship was
recognized in the 1973 Constitution when it provided that "[t]hose who elect Philippine citizenship
pursuant to the provisions of the Constitution of nineteen hundred and thirty-five" are citizens of the
Philippines.17 Likewise, this recognition by the 1973 Constitution was carried over to the 1987
Constitution which states that "[t]hose born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority" are Philippine citizens.18 It should be noted,
however, that the 1973 and 1987 Constitutional provisions on the election of Philippine citizenship
should not be understood as having a curative effect on any irregularity in the acquisition of
citizenship for those covered by the 1935 Constitution. If the citizenship of a person was subject to
challenge under the old charter, it remains subject to challenge under the new charter even if the
judicial challenge had not been commenced before the effectivity of the new Constitution.19

Being a legitimate child, respondent’s citizenship followed that of her father who is Chinese, unless
upon reaching the age of majority, she elects Philippine citizenship. It is a settled rule that only
legitimate children follow the citizenship of the father and that illegitimate children are under the
parental authority of the mother and follow her nationality.20 An illegitimate child of Filipina need not
perform any act to confer upon him all the rights and privileges attached to citizens of the
Philippines; he automatically becomes a citizen himself.21 But in the case of respondent, for her to be
considered a Filipino citizen, she must have validly elected Philippine citizenship upon reaching the
age of majority.

Commonwealth Act (C.A.) No. 625,22 enacted pursuant to Section 1(4), Article IV of the 1935
Constitution, prescribes the procedure that should be followed in order to make a valid election of
Philippine citizenship, to wit:

Section 1. The option to elect Philippine citizenship in accordance with subsection (4), [S]ection 1,
Article IV, of the Constitution shall be expressed in a statement to be signed and sworn to by the
party concerned before any officer authorized to administer oaths, and shall be filed with the nearest
civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to
the Constitution and the Government of the Philippines.

Based on the foregoing, the statutory formalities of electing Philippine citizenship are: (1) a
statement of election under oath; (2) an oath of allegiance to the Constitution and Government of the
Philippines; and (3) registration of the statement of election and of the oath with the nearest civil
registry.23

Furthermore, no election of Philippine citizenship shall be accepted for registration under C.A. No.
625 unless the party exercising the right of election has complied with the requirements of the Alien
Registration Act of 1950. In other words, he should first be required to register as an
alien.24 Pertinently, the person electing Philippine citizenship is required to file a petition with the
Commission of Immigration and Deportation (now Bureau of Immigration) for the cancellation of his
alien certificate of registration based on his aforesaid election of Philippine citizenship and said
Office will initially decide, based on the evidence presented the validity or invalidity of said
election.25 Afterwards, the same is elevated to the Ministry (now Department) of Justice for final
determination and review.26 1âwphi1

It should be stressed that there is no specific statutory or procedural rule which authorizes the direct
filing of a petition for declaration of election of Philippine citizenship before the courts. The special
proceeding provided under Section 2, Rule 108 of the Rules of Court on Cancellation or Correction
of Entries in the Civil Registry, merely allows any interested party to file an action for cancellation or
correction of entry in the civil registry, i.e., election, loss and recovery of citizenship, which is not the
relief prayed for by the respondent.

Be that as it may, even if we set aside this procedural infirmity, still the trial court’s conclusion that
respondent duly elected Philippine citizenship is erroneous since the records undisputably show that
respondent failed to comply with the legal requirements for a valid election. Specifically, respondent
had not executed a sworn statement of her election of Philippine citizenship. The only documentary
evidence submitted by respondent in support of her claim of alleged election was her oath of
allegiance, executed 12 years after she reached the age of majority, which was unregistered. As
aptly pointed out by the petitioner, even assuming arguendo that respondent’s oath of allegiance
suffices, its execution was not within a reasonable time after respondent attained the age of majority
and was not registered with the nearest civil registry as required under Section 1 of C.A. No. 625.
The phrase "reasonable time" has been interpreted to mean that the election should be made
generally within three (3) years from reaching the age of majority.27 Moreover, there was no
satisfactory explanation proffered by respondent for the delay and the failure to register with the
nearest local civil registry.

Based on the foregoing circumstances, respondent clearly failed to comply with the procedural
requirements for a valid and effective election of Philippine citizenship. Respondent cannot assert
that the exercise of suffrage and the participation in election exercises constitutes a positive act of
election of Philippine citizenship since the law specifically lays down the requirements for acquisition
of citizenship by election. The mere exercise of suffrage, continuous and uninterrupted stay in the
Philippines, and other similar acts showing exercise of Philippine citizenship cannot take the place of
election of Philippine citizenship. Hence, respondent cannot now be allowed to seek the intervention
of the court to confer upon her Philippine citizenship when clearly she has failed to validly elect
Philippine citizenship. As we held in Ching,28 the prescribed procedure in electing Philippine
citizenship is certainly not a tedious and painstaking process. All that is required of the elector is to
execute an affidavit of election of Philippine citizenship and, thereafter, file the same with the nearest
civil registry. Having failed to comply with the foregoing requirements, respondent’s petition before
the trial court must be denied.

WHEREFORE, the petition is GRANTED. The Decision dated April 3, 2009 of the Regional Trial
Court, Branch 3 of Baguio City in Spcl. Pro. Case No. 17-R is REVERSED and SET ASIDE. The
petition for judicial declaration of election of Philippine citizenship filed by respondent Nora Fe Sagun
is hereby DISMISSED for lack of merit.
No costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

1
Rollo, pp. 27-32. Penned by Presiding Judge Fernando Vil Pamintuan.

2
Records, pp. 1- 4.

3
Id. at 60.

4
Id. at 7.

5
Id. at 8.

6
Id. at 28.

7
Rollo, p. 32.

8
Id. at 59.
9
Id. at 43-44.

10
Id. at 48-49.

11
Sarsaba v. Vda. de Te, G.R. No. 175910, July 30, 2009, 594 SCRA 410, 420.

12
Rollo, pp. 31-32.

Yung Uan Chu v. Republic, No. L-34973, April 14, 1988, 159 SCRA 593, 597; Board of
13

Commissioners v. Domingo, No. L-21274, July 31, 1963, 8 SCRA 661, 664.

14
Id. at 598; Tan v. Republic of the Philippines, 107 Phil. 632, 634 (1960).

15
Id. at 597.

Supra note 14 at 633; Republic v. Maddela, Nos. L- 21664 and L- 21665, March 28, 1969,
16

27 SCRA 702, 705.

17
Sec. 1(3), Art. III, 1973 Constitution.

18
Sec. 1(3), Art. IV, 1987 Constitution.

Re: Application For Admission to the Philippine Bar. Vicente D. Ching, Bar Matter No. 914,
19

October 1, 1999, 316 SCRA 1, 7-8.

Go, Sr. v. Ramos, G.R. Nos. 167569-70 and 171946, September 4, 2009, 598 SCRA 266,
20

294-295.

21
Id. at 295.

An Act Providing for the Manner in Which the Option to Elect Philippine Citizenship shall be
22

Declared by Person Whose Mother is a Filipino Citizen, approved on June 7, 1941.

23
Ma v. Fernandez, Jr., G.R. No. 183133, July 26, 2010, 625 SCRA 566, 577.

Ronaldo P. Ledesma, An Outline of Philippine Immigration and Citizenship Laws, Vol. I,

24

2006 ed., pp. 526.

25
Id. at 527, citing Memorandum Order dated August 18, 1956 of the CID.

26
Id., citing DOJ Opinion No. 182 dated August 19, 1982.

Re: Application For Admission to the Philippine Bar. Vicente D. Ching, supra note 19 at
27

9; Ma v. Fernandez, Jr., supra note 23 at 578.

28
Id. at 12.
REPUBLIC ACT NO. 9139 June 08, 2001

AN ACT PROVIDING FOR THE ACQUISITION OF PHILIPPINE CITIZENSHIP FOR CERTAIN

ALIENS BY ADMINISTRATIVE NATURALIZATION AND FOR OTHER PURPOSES

Be it enacted by the Senate and the House of Representatives of the Philippines in Congress
assembled:

Section 1. Short Title. - This Act shall be known as "The Administrative Naturalization Law of 2000."

Section 2. Declaration of Policy. - The State shall control and regulate the admission and integration
of aliens into its territory and body politic including the grant of citizenship to aliens. Towards this
end, aliens born and residing in the Philippines may be granted Philippine citizenship by
administrative proceedings subject to certain requirements dictated by national security and interest.

Section 3. Qualifications. - Subject to the provisions of the succeeding section, any person desiring
to avail of the benefits of this Act must meet the following qualifications:

(a) The applicant must be born in the Philippines and residing therein since birth;

(b) The applicant must not be less than eighteen (18) years of age, at the time of filing of his/her
petition;

(c) The applicant must be of good moral character and believes in the underlying principles of the
Constitution, and must have conducted himself/herself in a proper and irreproachable manner during
his/her entire period of residence in the Philippines in his relation with the duly constituted
government as well as with the community in which he/she is living;

(d) The applicant must have received his/her primary and secondary education in any public school
or private educational institution dully recognized by the Department of Education, Culture and
Sports, where Philippine history, government and civics are taught and prescribed as part of the
school curriculum and where enrollment is not limited to any race or nationality: Provided, That
should he/she have minor children of school age, he/she must have enrolled them in similar schools;

(e) The applicant must have a known trade, business, profession or lawful occupation, from which
he/she derives income sufficient for his/her support and if he/she is married and/or has dependents,
also that of his/her family: Provided, however, That this shall not apply to applicants who are college
degree holders but are unable to practice their profession because they are disqualified to do so by
reason of their citizenship;

(f) The applicant must be able to read, write and speak Filipino or any of the dialects of the
Philippines; and

(g) The applicant must have mingled with the Filipinos and evinced a sincere desire to learn and
embrace the customs, traditions and ideals of the Filipino people.

Section 4. Disqualifications, - The following are not qualified to be naturalized as Filipino citizens
under this Act:

(a) Those opposed to organized government or affiliated with any association of group of persons
who uphold and teach doctrines opposing all organized governments;
(b) Those defending or teaching the necessity of or propriety of violence, personal assault or
assassination for the success or predominance of their ideas;

(c) Polygamists or believers in the practice of polygamy;

(d) Those convicted of crimes involving moral turpitude;

(e) Those suffering from mental alienation or incurable contagious diseases;

(f) Those who, during the period of their residence in the Philippines, have not mingled socially with
Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and
ideals of the Filipinos;

(g) Citizens or subjects with whom the Philippines is at war, during the period of such war; and

(h) Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be
naturalized citizens or subjects thereof.

Section 5. Petition for Citizenship. - (1) Any person desiring to acquire Philippine citizenship under
this Act shall file with the Special Committee on Naturalization created under Section 6 hereof, a
petition of five (5) copies legibly typed and signed, thumbmarked and verified by him/her, with the
latter's passport-sized photograph attached to each copy of the petition, and setting forth the
following:

(a) The petitioner's name and surname, and any other name he/she has used or by which he/she is
known;

(b) The petitioner's present and former places of residence;

(c) The petitioner's place and date of birth, the names and citizenship of his/her parents and their
residences;

(d) The petitioner's trade, business, profession or occupation, and if married, also that of his/her
spouse;

(e) Whether the petitioner is single or married or his/her marriage is annulled. If married, petitioner
shall state the date and place of his/her marriage, and the name, date of birth, birthplace, citizenship
and residence of his/her spouse; and if his marriage is annulled, the date of decree of annulment of
marriage and the court which granted the same;

(f) If the petitioner has children, the name, date and birthplace and residences of his/her children ;

(g) A declaration that the petitioner possesses all the qualifications and none of the disqualifications
under this Act;

(h) A declaration that the petitioner shall never be a public charge; and

(i) A declaration that it is the petitioner's true and honest intention to acquire Philippine citizenship
and to renounce absolutely and forever any prince, potentate, State or sovereign, and particularly
the country of which the applicant is a citizen or subject.
(2) The application shall be accompanied by:

(a) Duplicate original or certified photocopies of petitioner's birth certificate;

(b) Duplicate original or certified photocopies of petitioner's alien certificate of registration and native
born certificate of residence;

(c) Duplicate original or certified photocopies of petitioner's marriage certified, if married, or the death
certificate of his spouse, if widowed, or the court decree annulling his marriage, if such was the fact;

(d) Duplicate original or certified photocopies of birth certificates, alien certificate of registration or
native born certificate of residence if any, of petitioner's minor children, wherever applicable;

(e) Affidavit of financial capacity by the petitioner, and sworn statements on the good moral
character of the petitioner by at least two (2) Filipino citizens of good reputation in his/her place of
residence stating that they have personally known the petitioner for at least a period of ten (10)
years and that said petitioner has in their own opinion all the qualifications necessary to become a
citizen of the Philippines and is not in any way disqualified under the provisions of this Act;

(f) A medical certificate that petitioner is not a user of prohibited drugs or otherwise a drug
dependent and that he/she is not afflicted with acquired immune deficiency syndrome (AIDS);

(g) School diploma and transcript of records of the petitioner in the schools he attended in the
Philippines. Should the petitioner have minor children, a certification that his children are enrolled in
a school where Philippine history, government and civics are taught and are part of the curriculum;
and

(h) If gainfully employed, the income tax return for the past three (3) years.

Section 6. Special Committee on Naturalization. - There shall be constituted a Special Committee

on Naturalization herein referred to as the "Committee", with the Solicitor General as chairman, the
Secretary of Foreign Affairs, or his representative, and the National Security Adviser, as members,
with the power to approve, deny or reject applications for naturalization as provided in this Act.

The Committee shall meet, as often as practicable, to consider applications for naturalization. For
this purpose, the chairman and members shall receive an honorarium of Two thousand pesos
(P2,000.00) and One thousand five hundred pesos (P1,500.00), respectively, per meeting attended.

Section 7. Powers/Functions of the Special Committee on Naturalization. - An alien who believes

that he has all the qualifications, and none of the disqualifications, may file an application for
naturalization with the secretariat of the Special Committee on Naturalization, and a processing fee
of Forty thousand pesos (P40,000.00). Thereafter, the petition shall be stamped to indicate the date
of filing and a corresponding docket number. Within fifteen (15) days from the receipt of the petition,
the Committee shall determine whether the petition is complete in substance and in form. If such
petition is complete, the Committee shall immediately publish pertinent portions of the petition
indicating the name, qualifications and other personal circumstances of the applicant, once a week
for three (3) consecutive weeks in a newspaper of general circulation, and have copies of the
petition posted in any public or conspicuous area. The Committee shall immediately furnish the
Department of Foreign Affairs (DFA), the Bureau of Immigration (BI), the civil registrar of the
petitioner's place of residence and tile National Bureau of Investigation (NBI) copies of the petition
and its supporting documents. These agencies shall have copies of the petition posted in any public
or conspicuous area in their buildings, offices and premises, and shall, within thirty (30) days from
the receipt of the petition, submit to the Committee a report stating whether or not petitioner has any
derogatory record on file or any such relevant and material information which might be adverse to
petitioner's application for citizenship.

If the petition is found by the Committee to be wanting in substance and form, the petition shall be
dismissed without prejudice.

Section 8. Approval or Disapproval of the Petition. - Within sixty (60) days from receipt of the report
of the agencies which were furnished a copy of the petition or the date of the last publication of the
petition, whichever comes in later, the Committee shall consider and review all relevant and material
information it has received pertaining to the petition, and may, for the purpose call the petitioner for
interview to ascertain his/her identity, the authenticity of the petition and its annexes, and to
determine the truthfulness of the statements and declarations made in the petition and its annexes.

If the Committee shall have received any information adverse to the petition, the Committee shall
allow the petitioner to answer, explain or refute the information.

Thereafter, if the Committee believes, in view of the facts before it, that the petitioner has all the
qualifications and none of the disqualifications required for Philippine citizenship under this Act, it
shall approve the petition and henceforth, notify the petitioner of the fact of such approval.
Otherwise, the Committee shall disapprove the same.

Section 9. Decree of Naturalization and Naturalization Processing Fee. -Within thirty (30) days from
the receipt of the notice of the approval of his/her petition, the applicant shall pay to the Committee a
naturalization fee of One hundred thousand pesos (P100,000.00) payable as follows: Fifty thousand
pesos (P50,000.00) upon the approval of the petition and Fifty thousand pesos (P50,000.00) upon
the taking of the oath of allegiance to the Republic of the Philippines, forthwith, a certificate of
naturalization shall be issued. Within sixty (60) days from the issuance of the certificate, the
petitioner shall take an oath of allegiance in the proper forum upon proof of payment of the required
naturalization processing fee and certificate of naturalization. Should the applicant fail to take the
abovementioned oath of allegiance within said period of time, the approval of the petition shall be
deemed abandoned.

Section 10. Duty of the Bureau of Immigration. - Within five (5) days after the applicant has taken
his oath of allegiance as required in the preceding section, the BI shall forward a copy of the
petitioner's oath to the proper local civil registrar. Thereafter, the BI shall cancel the alien certificates
of registration of the applicant.

Section 11. Status of Alien Wife and Minor Children. - After the approval of the petition for
administrative naturalization in cancellation of applicant's alien certificate of registration, applicant's
alien lawful wife and minor children may file a petition for cancellation of their alien certificates of
registration with the Committee subject to the payment of the filing fee of Twenty thousand pesos
(P20,000.00) and naturalization fee of Forty thousand pesos (P40,000.00) payable as follows:
Twenty thousand pesos (P20,000.00) upon the approval of the petition and Twenty thousand pesos
(P20,000.00) upon the taking of the oath of allegiance to the Republic of the Philippines.

Section 12. Status of Alien Husband and Minor Children. - If the applicant is a married woman, the
approval of her petition for administrative naturalization will not benefit her alien husband but her
minor children may file a petition for cancellation of their alien certificates of registration with the BI
subject to the requirements of existing laws.
Section 13. Cancellation of the Certificate of Naturalization. - The Special Committee may cancel
certificates of naturalization issued under this Act in the following cases:

(a) If it finds that the naturalized person or his duly authorized representative made any false
statement or misrepresentation or committed any violation of law, rules and regulations in
connection with the petition for naturalization, or if he otherwise obtains Philippine citizenship
fraudulently or illegally, the certificate of naturalization shall be cancelled;

(b) If the naturalized person or his wife, or any or his minor children who acquire Filipino citizenship
by virtue of his naturalization shall, within five (5) years next following the grant of Philippine
citizenship, establish permanent residence in a foreign country, that individual's certificate of
naturalization or acquired citizenship shall be cancelled or revoked: Provided, That the fact of such
person's remaining for more than one (1) year in his country of origin, or two (2) years in any foreign
country, shall be considered prima facie evidence of intent to permanently reside therein;

(c) If the naturalized person or his wife or child with acquired citizenship allows himself or herself to
be used as a dummy in violation of any constitutional or legal provision requiring Philippine
citizenship as a condition for the exercise, use or enjoyment of a right, franchise or privilege, the
certificate of naturalization or acquired citizenship shall be cancelled or revoked; and

(d) If the naturalized person or his wife or child with acquired citizenship commits any act inimical to
national security, the certificate of naturalization or acquired citizenship shall be cancelled or
revoked.

In case the naturalized person holds any hereditary title, or belong to any order of nobility, he shall
make an express renunciation of his title or membership in this order of nobility before the Special
Committee or its duly authorized representative, and such renunciation shall be included in the
records of his application for citizenship.

Section 14. Penalties. - Any person who shall fraudulently make, falsify, forge, change, alter, or
cause or aid any person to do the same, or who shall purposely aid and assist in falsely making,
forging, falsifying, changing or altering a naturalization certificate issued under this proceeding for
the purpose of making use thereof, or in order that the same may be used by another person or
persons, and any person who shall purposely aid and assist another in obtaining a naturalization
certificate in violation of this Act, shall be punished by a fine of not more than Five hundred thousand
pesos (P500,OOO.OO) and by imprisonment for not more than five (5) years, and in the case that
the person convicted is a naturalized citizen, his certificate of naturalization shall, if not earlier
cancelled by the Special Committee, be ordered cancelled.

Section 15. Any person who failed to register his/her birth with the concerned city or municipal civil
registrar may, within two (2) years from the effectivity of this Act, file a petition for the acquisition of
the Philippine citizenship: Provided, That the applicant possesses all the qualifications and none of
the disqualifications under this Act and subject to the requirements of existing laws.

Section 16. Special Disposition of the Filing Fee. - An amount equivalent to twenty five percent
(25%) of the filing fee to be paid by the applicants pursuant to Section 7 hereof shall accrue to the
University of the Philippines Law Center and another twenty-five percent (25%) shall be allotted for
the publication of the Journal of the House of Representatives. Said amount shall be treated as
receipts automatically appropriated.
Section 17. Implementing Rules and Regulations. - The Special Committee on Naturalization is
hereby authorized to promulgate such rules and regulations as may be needed for the proper
implementation of the provisions of this Act.

Section 18. Repealing Clause. -All provisions of existing laws, orders, decrees, rules and
regulations contrary to or inconsistent with this Act are hereby repealed or modified accordingly.

Section 19. Separability CIause. - If any part, section or provision of this Act is declared invalid or
unconstitutional, the part, section or provision not affected thereby shall continue to be in force and
effect.

Section 20. Effectivity Clause. - This Act shall take effect after fifteen (15) days following its
publication in at least two (2) newspapers of general circulation.

Approved,

(Sgd)

AQUILINO Q. PIMENTEL JR.

President of the Senate

(Sgd)

FELICIANO BELMONTE JR.

Speaker of the House of Representatives

(Sgd)

LUTGARDO B. BARBO
Secretary of the Senate
COMMONWEALTH ACT No. 473

AN ACT TO PROVIDE FOR THE ACQUISITION OF PHILIPPINE CITIZENSHIP BY

NATURALIZATION, AND TO REPEAL ACTS NUMBERED TWENTY-NINE HUNDRED AND
TWENTY-SEVEN AND THIRTY-FOUR HUNDRED AND FORTY-EIGHT.

Be it enacted by the National Assembly of the Philippines:

Section 1. Title of Act. – This Act shall be known and may be cited as the "Revised Naturalization
Law."

Section 2. Qualifications. – Subject to section four of this Act, any person having the following
qualifications may become a citizen of the Philippines by naturalization:

First. He must be not less than twenty-one years of age on the day of the hearing of the
petition;

Second. He must have resided in the Philippines for a continuous period of not less than ten
years;

Third. He must be of good moral character and believes in the principles underlying the
Philippine Constitution, and must have conducted himself in a proper and irreproachable
manner during the entire period of his residence in the Philippines in his relation with the
constituted government as well as with the community in which he is living.

Fourth. He must own real estate in the Philippines worth not less than five thousand pesos,
Philippine currency, or must have some known lucrative trade, profession, or lawful
occupation;

Fifth. He must be able to speak and write English or Spanish and any one of the principal
Philippine languages; and

Sixth. He must have enrolled his minor children of school age, in any of the public schools or
private schools recognized by the Office of Private Education1 of the Philippines, where the
Philippine history, government and civics are taught or prescribed as part of the school
curriculum, during the entire period of the residence in the Philippines required of him prior to
the hearing of his petition for naturalization as Philippine citizen.

Section 3. Special qualifications. The ten years of continuous residence required under the second
condition of the last preceding section shall be understood as reduced to five years for any petitioner
having any of the following qualifications:

1. Having honorably held office under the Government of the Philippines or under that of any of
the provinces, cities, municipalities, or political subdivisions thereof;
2. Having established a new industry or introduced a useful invention in the Philippines;
3. Being married to a Filipino woman;
4. Having been engaged as a teacher in the Philippines in a public or recognized private school
not established for the exclusive instruction of children of persons of a particular nationality
or race, in any of the branches of education or industry for a period of not less than two
years;
5. Having been born in the Philippines.
Section 4. Who are disqualified. - The following cannot be naturalized as Philippine citizens:

a. Persons opposed to organized government or affiliated with any association or group of

persons who uphold and teach doctrines opposing all organized governments;
b. Persons defending or teaching the necessity or propriety of violence, personal assault, or
assassination for the success and predominance of their ideas;
c. Polygamists or believers in the practice of polygamy;
d. Persons convicted of crimes involving moral turpitude;
e. Persons suffering from mental alienation or incurable contagious diseases;
f. Persons who, during the period of their residence in the Philippines, have not mingled
socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the
customs, traditions, and ideals of the Filipinos;
g. Citizens or subjects of nations with whom the United States 2and the Philippines are at war,
during the period of such war;
h. Citizens or subjects of a foreign country other than the United States 3whose laws do not
grant Filipinos the right to become naturalized citizens or subjects thereof.

Section 5. Declaration of intention. – One year prior to the filing of his petition for admission to
Philippine citizenship, the applicant for Philippine citizenship shall file with the Bureau of Justice4 a
declaration under oath that it is bona fide his intention to become a citizen of the Philippines. Such
declaration shall set forth name, age, occupation, personal description, place of birth, last foreign
residence and allegiance, the date of arrival, the name of the vessel or aircraft, if any, in which he
came to the Philippines, and the place of residence in the Philippines at the time of making the
declaration. No declaration shall be valid until lawful entry for permanent residence has been
established and a certificate showing the date, place, and manner of his arrival has been issued.
The declarant must also state that he has enrolled his minor children, if any, in any of the public
schools or private schools recognized by the Office of Private Education5 of the Philippines, where
Philippine history, government, and civics are taught or prescribed as part of the school curriculum,
during the entire period of the residence in the Philippines required of him prior to the hearing of his
petition for naturalization as Philippine citizen. Each declarant must furnish two photographs of
himself.

Section 6. Persons exempt from requirement to make a declaration of intention. – Persons born in
the Philippines and have received their primary and secondary education in public schools or
those recognized by the Government and not limited to any race or nationality, and those
who have resided continuously in the Philippines for a period of thirty years or more before
filing their application, may be naturalized without having to make a declaration of intention upon
complying with the other requirements of this Act. To such requirements shall be added that
which establishes that the applicant has given primary and secondary education to all his
children in the public schools or in private schools recognized by the Government and not
limited to any race or nationality. The same shall be understood applicable with respect to the
widow and minor children of an alien who has declared his intention to become a citizen of the
Philippines, and dies before he is actually naturalized.6

Section 7. Petition for citizenship. – Any person desiring to acquire Philippine citizenship shall file
with the competent court, a petition in triplicate, accompanied by two photographs of the petitioner,
setting forth his name and surname; his present and former places of residence; his occupation; the
place and date of his birth; whether single or married and the father of children, the name, age,
birthplace and residence of the wife and of each of the children; the approximate date of his or her
arrival in the Philippines, the name of the port of debarkation, and, if he remembers it, the name of
the ship on which he came; a declaration that he has the qualifications required by this Act,
specifying the same, and that he is not disqualified for naturalization under the provisions of this Act;
that he has complied with the requirements of section five of this Act; and that he will reside
continuously in the Philippines from the date of the filing of the petition up to the time of his
admission to Philippine citizenship. The petition must be signed by the applicant in his own
handwriting and be supported by the affidavit of at least two credible persons, stating that they are
citizens of the Philippines and personally know the petitioner to be a resident of the Philippines for
the period of time required by this Act and a person of good repute and morally irreproachable, and
that said petitioner has in their opinion all the qualifications necessary to become a citizen of the
Philippines and is not in any way disqualified under the provisions of this Act. The petition shall also
set forth the names and post-office addresses of such witnesses as the petitioner may desire to
introduce at the hearing of the case. The certificate of arrival, and the declaration of intention must
be made part of the petition.

Section 8. Competent court.—The Court of First Instance of the province in which the petitioner has
resided at least one year immediately preceding the filing of the petition shall have exclusive original
jurisdiction to hear the petition.

Section 9. Notification and appearance.—Immediately upon the filing of a petition, it shall be the
duty of the clerk of the court to publish the same at petitioner's expense, once a week for three
consecutive weeks, in the Official Gazette, and in one of the newspapers of general circulation in the
province where the petitioner resides, and to have copies of said petition and a general notice of the
hearing posted in a public and conspicuous place in his office or in the building where said office is
located, setting forth in such notice the name, birthplace and residence of the petitioner, the date
and place of his arrival in the Philippines, the names of the witnesses whom the petitioner proposes
to introduce in support of his petition, and the date of the hearing of the petition, which hearing shall
not be held within ninety days from the date of the last publication of the notice. The clerk shall, as
soon as possible, forward copies of the petition, the sentence, the naturalization certificate, and
other pertinent data to the Department of the Interior, 7 the Bureau of Justice,8 the Provincial
Inspector9 of the Philippine Constabulary of the province and the justice of the peace10 of the
municipality wherein the petitioner resides.

Section 10. Hearing of the petition.—No petition shall be heard within the thirty days preceding any
election. The hearing shall be public, and the Solicitor-General, either himself or through his
delegate or the provincial fiscal concerned, shall appear on behalf of the Commonwealth11 of the
Philippines at all the proceedings and at the hearing. If, after the hearing, the court believes, in view
of the evidence taken, that the petitioner has all the qualifications required by, and none of the
disqualifications specified in this Act and has complied with all requisites herein established, it shall
order the proper naturalization certificate to be issued and the registration of the said naturalization
certificate in the proper civil registry as required in section ten of Act Numbered Three thousand
seven hundred and fifty-three.12

Section 11. Appeal.—The final sentence may, at the instance of either of the parties, be appealed to
the Supreme Court.13

Section 12. Issuance of the Certificate of Naturalization.—If, after the lapse of thirty days from and
after the date on which the parties were notified of the Court, no appeal has been filed, or if, upon
appeal, the decision of the court has been confirmed by the Supreme Court,14 and the said decision
has become final, the clerk of the court which heard the petition shall issue to the petitioner a
naturalization certificate which shall, among other things, state the following: The file number of the
petition, the number of the naturalization certificate, the signature of the person naturalized affixed in
the presence of the clerk of the court, the personal circumstances of the person naturalized, the
dates on which his declaration of intention and petition were filed, the date of the decision granting
the petition, and the name of the judge who rendered the decision. A photograph of the petitioner
with the dry seal affixed thereto of the court which granted the petition, must be affixed to the
certificate.

Before the naturalization certificate is issued, the petitioner shall, in open court, take the following
oath:

"I, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , solemnly swear that I renounce absolutely and

forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, and
particularly to the . . . . . . . . . . . . . . . . . . of which at this time I am a subject or citizen; that I will
support and defend the Constitution of the Philippines and that I will obey the laws, legal orders and
decrees promulgated by the duly constituted authorities of the Commonwealth15of the Philippines;
[and I hereby declare that I recognize and accept the supreme authority of the United States of
America in the Philippines and will maintain true faith and allegiance thereto;16 and that I impose this
obligation upon myself voluntarily without mental reservation or purpose of evasion.

"So help me God."

Section 13. Record books.—The clerk of the court shall keep two books; one in which the petition
and declarations of intention shall be recorded in chronological order, noting all proceedings thereof
from the filing of the petition to the final issuance of the naturalization certificate; and another, which
shall be a record of naturalization certificates each page of which shall have a duplicate which shall
be duly attested by the clerk of the court and delivered to the petitioner.

Section 14. Fees.—The clerk of the Court of First Instance shall charge as fees for recording a
petition for naturalization and for the proceedings in connection therewith, including the issuance of
the certificate, the sum of thirty pesos.

The Clerk of the Supreme Court17 shall collect for each appeal and for the services rendered by him
in connection therewith, the sum of twenty-four pesos.

Section 15. Effect of the naturalization on wife and children.—Any woman who is now or may
hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized
shall be deemed a citizen of the Philippines.

Minor children of persons naturalized under this law who have been born in the Philippines shall be
considered citizens thereof.

A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization of the parent,
shall automatically become a Philippine citizen, and a foreign-born minor child, who is not in the
Philippines at the time the parent is naturalized, shall be deemed a Philippine citizen only during his
minority, unless he begins to reside permanently in the Philippines when still a minor, in which case,
he will continue to be a Philippine citizen even after becoming of age.

A child born outside of the Philippines after the naturalization of his parent, shall be considered a
Philippine citizen, unless one year after reaching the age of majority, he fails to register himself as a
Philippine citizen at the
*************************** MISSING PAGE "#329" ***********************

the fault of their parents either by neglecting to support them or by transferring them
to another school or schools. A certified copy of the decree canceling the
naturalization certificate shall be forwarded by the clerk of the Court to the
Department of the Interior20 and the Bureau of Justice.21

(e) If it is shown that the naturalized citizen has allowed himself to be used as a
dummy in violation of the Constitutional or legal provision requiring Philippine
citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or
privilege.

Section 19. Penalties for violation of this Act.—Any person who shall fraudulently make, falsify,
forge, change, alter, or cause or aid any person to do the same, or who shall purposely aid and
assist in falsely making, forging, falsifying, changing or altering a naturalization certificate for the
purpose of making use thereof, or in order that the same may be used by another person or
persons, and any person who shall purposely aid and assist another in obtaining a naturalization
certificate in violation of the provisions of this Act, shall be punished by a fine of not more than five
thousand pesos or by imprisonment for not more than five years, or both, and in the case that the
person convicted is a naturalized citizen his certificate of naturalization and the registration of the
same in the proper civil registry shall be ordered cancelled.

Section 20. Prescription.—No person shall be prosecuted, charged, or punished for an offense
implying a violation of the provisions of this Act, unless the information or complaint is filed within five
years from the detection or discovery of the commission of said offense.

Section 21. Regulation and blanks.—The Secretary of Justice shall issue the necessary regulations
for the proper enforcement of this Act. Naturalization certificate blanks and other blanks required for
carrying out the provisions of this Act shall be prepared and furnished by the Solicitor-General,
subject to the approval of the Secretary of Justice.

Section 22. Repealing clause.—Act Numbered Twenty-nine hundred and twenty-seven as amended
by Act Numbered Thirty-four hundred and forty-eight, entitled "The Naturalization Law", is
repealed: Provided, That nothing in this Act shall be construed to affect any prosecution, suit, action,
or proceedings brought, or any act, thing, or matter, civil or criminal, done or existing before the
taking effect of this Act, but as to all such prosecutions, suits, actions, proceedings, acts, things, or
matters, the laws, or parts of laws repealed or amended by this Act are continued in force and effect.

Section 23. Date when this Act shall take effect.—This Act shall take effect on its approval.

Approved, June 17, 1939.

G.R. No. 175430 June 18, 2012

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
KERRY LAO ONG, Respondent.

DECISION

DEL CASTILLO, J.:

Naturalization laws are strictly construed in the government’s favor and against the applicant.1 The
applicant carries the burden of proving his full compliance with the requirements of law.2

Before the Court is the Republic’s appeal of the appellate court’s Decision3 dated May 13, 2006 in
CA-G.R. CV No. 74794, which affirmed the trial court’s grant of citizenship to respondent Kerry Lao
Ong (Ong). The Court of Appeals (CA) held:

With all the foregoing, We find no cogent reason to reverse the decision of the court a quo.

WHEREFORE, the decision of the Regional Trial Court of Cebu City, 7th Judicial Region, Branch 9
in its Decision dated November 23, 2001, is AFFIRMED in toto and the instant appeal is
DISMISSED.

SO ORDERED.4

Factual Antecedents

On November 26, 1996, respondent Ong, then 38 years old,5 filed a Petition for Naturalization.6 The
case was docketed as Nat. Case No. 930 and assigned to Branch 9 of the Regional Trial Court of
Cebu City. As decreed by Commonwealth Act No. 473, as amended by Republic Act No. 530,
known as the Revised Naturalization Law,7 the petition was published in the Official Gazette8 and a
newspaper of general circulation,9 and posted in a public place for three consecutive weeks,10 six
months before the initial hearing.11 The Office of the Solicitor General entered its appearance and
authorized12 the city prosecutor to appear on its behalf.13 Accordingly, Fiscals Ester Veloso and Perla
Centino participated in the proceedings below.

Respondent Ong was born at the Cebu General Hospital in Cebu City to Chinese citizens Siao Hwa
Uy Ong and Flora Ong on March 4, 1958.14 He is registered as a resident alien and possesses an
alien certificate of registration15and a native-born certificate of residence16 from the Bureau of
Immigration. He has been continuously and permanently residing17 in the Philippines from birth up to
the present.18 Ong can speak19 and write in Tagalog, English, Cebuano, and Amoy.20 He took his
elementary21 and high school22 studies at the Sacred Heart School for Boys in Cebu City, where social
studies, Pilipino, religion, and the Philippine Constitution are taught. He then obtained a degree in
Bachelor of Science in Management from the Ateneo De Manila University on March 18, 1978.23

On February 1, 1981, he married Griselda S. Yap, also a Chinese citizen.24 They have four
children,25 namely, Kerri Gail (born on April 15, 1983),26 Kimberley Grace (born on May 15,
1984),27 Kyle Gervin (born on November 4, 1986),28 and Kevin Griffith (born on August 21,
1993),29 who were all born and
raised in the Philippines. The children of school age were enrolled30 at the Sacred Heart School for
Boys31 and Sacred Heart School for Girls.32 At the time of the filing of the petition, Ong, his wife, and
children were living at No. 55 Eagle Street, Sto. Niño Village, Banilad, Cebu City.

Ong has lived at the following addresses:33

1. Manalili Street, Cebu City (when Ong was in Grade 2)34

2. Crystal Compound Guadalupe, Cebu City (until 1970)35

3. No. 671 A.S. Fortuna Street, Cebu City (until 1992)36

4. No. 55 Eagle Street, Sto. Niño Village, Banilad, Cebu City (until 1998);37 and

5. No. 50 Roselle Street, North Town Homes, Nasipit, Talamban, Cebu City (present).38

Ong alleged in his petition that he has been a "businessman/business manager" since 1989, earning
an average annual income of ₱150,000.00.39 When he testified, however, he said that he has been a
businessman since he graduated from college in 1978.40 Moreover, Ong did not specify or describe
the nature of his business. 41

As proof of his income, Ong presented four tax returns for the years 1994 to 1997.42 Based on these
returns, Ong’s gross annual income was ₱60,000.00 for 1994; ₱118,000.00 for 1995; ₱118,000.00
for 1996; and ₱128,000.00 for 1997.

Respondent further testified that he socializes43 with Filipinos; celebrates the Sinulog, fiestas,
birthdays, and Christmas.44 He is a member of the Alert/ React VII Communications Group and the
Masonic organization.45

Respondent Ong presented a health certificate to prove46 that he is of sound physical and mental
health.47 As shown by the clearances from the National Bureau of Investigation,48 the Philippine
National Police,49 the trial courts,50 and the barangay,51 he has no criminal record or pending criminal
charges.52

Respondent presented Rudy Carvajal (Carvajal) and Bernard Sepulveda (Sepulveda) as his
character witnesses. At that time, Sepulveda was the vice-mayor of Borbon, Cebu.53 He has known
Ong since 1970 because Ong is the close friend of Sepulveda’s brother.54 He testified that Ong is
very helpful in the community and adopts the Filipino culture.55 Meanwhile, Carvajal testified that he
has known Ong since the 1970s because they were high school classmates.56 He testified that Ong is
morally irreproachable and possesses all the qualifications to be a good citizen of the
Philippines.57 Carvajal is a businessman engaged in leasing office spaces.58

On November 23, 2001, the trial court granted Ong’s petition. Among other things, the trial court held
that:

xxxx

By the testimonial and documentary evidence adduced by the [respondent], the following facts had
been established.59

xxxx
x x x [Respondent] is a businessman/business manager engaged in lawful trade and business since
1989 from which he derives an average annual income of more than One Hundred Fifty Thousand
Pesos (Exhibit U, V, W, and X with sub-markings); x x x60

The dispositive portion of the trial court’s Decision reads:

From the evidence presented by [respondent], this Court believes and so holds that [respondent]
possesses all the qualifications and none of the disqualifications provided for by law to become a
citizen of the Philippines.

WHEREFORE, premises considered, the petition is hereby GRANTED. Accordingly, [respondent]

KERRY LAO ONG is hereby admitted as citizen of the Republic of the Philippines.

SO ORDERED.61

Republic’s Appeal

On January 31, 2003, the Republic, through the Solicitor General, appealed

to the CA. The Republic faulted the trial court for granting Ong’s petition despite his failure to prove
that he possesses a known lucrative trade, profession or lawful occupation as required under
Section 2, fourth paragraph of the Revised Naturalization Law.62

The Republic posited that, contrary to the trial court’s finding, respondent Ong did not prove his
allegation that he is a businessman/business manager earning an average income of ₱150,000.00
since 1989. His income tax returns belie the value of his income. Moreover, he failed to present
evidence on the nature of his profession or trade, which is the source of his income. Considering that
he has four minor children (all attending exclusive private schools), he has declared no other
property and/or bank deposits, and he has not declared owning a family home, his alleged income
cannot be considered lucrative. Under the circumstances, the Republic maintained that respondent
Ong is not qualified as he does not possess a definite and existing business or trade.63

Respondent Ong conceded that the Supreme Court has adopted a higher standard of income for
applicants for naturalization.64 He likewise conceded that the legal definition of lucrative income is the
existence of an appreciable margin of his income over his expenses.65 It is his position that his
income, together with that of his wife, created an appreciable margin over their
expenses.66 Moreover, the steady increase in his income, as evidenced in his tax returns, proved that
he is gainfully employed.67

The appellate court dismissed the Republic’s appeal. It explained:

In the case at bar, the [respondent] chose to present [pieces of evidence] which relates [sic] to his
lucrative trade, profession or lawful occupation. Judging from the present standard of living and the
personal circumstances of the [respondent] using the present time as the index for the income stated
by the [respondent], it may appear that the [respondent] has no lucrative employment. However, We
must be mindful that the petition for naturalization was filed in 1996, which is already ten years ago.
It is of judicial notice that the value of the peso has taken a considerable plunge in value since that
time up to the present. Nonetheless, if We consider the income earned at that time, the ages of the
children of the [respondent], the employment of his wife, We can say that there is an appreciable
margin of his income over his expenses as to be able to provide for an adequate support.68
The appellate court denied the Republic’s motion for reconsideration69 in its Resolution dated
November 7, 2006.70

Issue

Whether respondent Ong has proved that he has some known lucrative trade, profession or lawful
occupation in accordance with Section 2, fourth paragraph of the Revised Naturalization Law.

Petitioner’s Arguments

Petitioner assigns as error the appellate court’s ruling that "there is an appreciable margin of
(respondent’s) income over his expenses as to be able to provide for an adequate support."71 The
Republic contends that the CA’s conclusion is not supported by the evidence on record and by the
prevailing law.72

The only pieces of evidence presented by Ong to prove that he qualifies under Section 2, fourth
paragraph of the Revised Naturalization Law, are his tax returns for the years 1994 to 1997, which
show that Ong earns from ₱60,000.00 to ₱128,000.00 annually. This declared income is far from the
legal requirement of lucrative income. It is not sufficient to provide for the needs of a family of six,
with four children of school age.73

Moreover, none of these tax returns describes the source of Ong’s income, much less can they
describe the lawful nature thereof.74 The Republic also noted that Ong did not even attempt to
describe what business he is engaged in. Thus, the trial and appellate courts’ shared conclusion that
Ong is a businessman is grounded entirely on speculation, surmises or conjectures.75

The Republic thus prays for the reversal of the appellate court’s Decision and the denial of Ong’s
petition for naturalization.76

Respondent’s Arguments

Respondent asks for the denial of the petition as it seeks a review of factual findings, which review is
improper in a Rule 45 petition.77 He further submits that his tax returns support the conclusion that he
is engaged in lucrative trade.78

Our Ruling

The courts must always be mindful that naturalization proceedings are imbued with the highest
public interest.79Naturalization laws should be rigidly enforced and strictly construed in favor of the
government and against the applicant.80 The burden of proof rests upon the applicant to show full and

complete compliance with the requirements of law.81

In the case at bar, the controversy revolves around respondent Ong’s compliance with the
qualification found in Section 2, fourth paragraph of the Revised Naturalization Law, which provides:

SECTION 2. Qualifications. – Subject to section four of this Act, any person having the following
qualifications may become a citizen of the Philippines by naturalization:

xxxx
Fourth. He must own real estate in the Philippines worth not less than five thousand pesos,
Philippine currency, or must have some known lucrative trade, profession, or lawful occupation;

x x x x82

Based on jurisprudence, the qualification of "some known lucrative trade, profession, or lawful
occupation" means "not only that the person having the employment gets enough for his ordinary
necessities in life. It must be shown that the employment gives one an income such that there is an
appreciable margin of his income over his expenses as to be able to provide for an adequate
support in the event of unemployment, sickness, or disability to work and thus avoid one’s becoming
the object of charity or a public charge."83 His income should permit "him and the members of his
family to live with reasonable comfort, in accordance with the prevailing standard of living, and
consistently with the demands of human dignity, at this stage of our civilization."84

Moreover, it has been held that in determining the existence of a lucrative

income, the courts should consider only the applicant’s income; his or her spouse’s income should
not be included in the assessment. The spouse’s additional income is immaterial "for under the law
the petitioner should be the one to possess ‘some known lucrative trade, profession or lawful
occupation’ to qualify him to become a Filipino citizen."85 Lastly, the Court has consistently held that
the applicant’s qualifications must be determined as of the time of the filing of his petition.86

Going over the decisions of the courts below, the Court finds that the foregoing guidelines have not
been observed. To recall, respondent Ong and his witnesses testified that Ong is a businessman but
none of them identified Ong’s business or described its nature. The Court finds it suspect that Ong
did not even testify as to the nature of his business, whereas his witness Carvajal did with respect to
his own (leasing of office space). A comparison of their respective testimonies is reproduced below:

Carvajal’s testimony

Q: You said earlier that you are a businessman?

A: Yes, Sir.

Q: How long have you been a businessman?

A: Since 1980.

Q: And what is the business you are engaged in?

A: I am into leasing of office spaces.87

Kerry Lao Ong’s testimony

Q: What is your present occupation, Mr. Ong?

A: Businessman.

Q: Since when have you engaged in that occupation?

A: After graduation from college.88

The dearth of documentary evidence compounds the inadequacy of the testimonial evidence. The
applicant provided no documentary evidence, like business permits, registration, official receipts, or
other business records to demonstrate his proprietorship or participation in a business. Instead, Ong
relied on his general assertions to prove his possession of "some known lucrative trade, profession
or lawful occupation." Bare, general assertions cannot discharge the burden of proof that is required
of an applicant for naturalization.

The paucity of evidence is unmistakable upon a reading of the trial court’s decision. The trial court
held that respondent Ong "is a businessman engaged in lawful trade and business since 1989"89 but
did not cite the evidence, which supports such finding. After poring over the records, the Court finds
that the reason for the lack of citation is the absence of evidence to support such conclusion. The
trial court’s conclusion that Ong has been a businessman since 1989 is only an assertion found in
Ong’s petition for naturalization.90 But, on the witness stand, Ong did not affirm this assertion.
Instead, he testified that he had been a businessman since he graduated from college, which was in
1978.91

Further, the trial court, citing Exhibits U, V, W, and X (which are Ong’s tax returns), mistakenly found
that Ong "derives an average annual income of more than One Hundred Fifty Thousand
Pesos."92 This conclusion is not supported by the evidence. The cited tax returns show that Ong’s
gross annual income for the years 1994 to 1997 were ₱60,000.00, ₱118,000.00, ₱118,000.00, and
₱128,000.00, respectively. The average annual income from these tax returns is ₱106,000.00 only,
not ₱150,000.00 as the trial court held. It appears that the trial court again derived its conclusion
from an assertion in Ong’s petition,93 but not from the evidence.

As for the CA, it no longer ruled on the question whether Ong has a known business or trade.
Instead, it ruled on the issue whether Ong’s income, as evidenced by his tax returns, can be
considered lucrative in 1996. In determining this issue, the CA considered the ages of Ong’s
children, the income that he earned in 1996, and the fact that Ong’s wife was also employed at that
time. It then concluded that there is an appreciable margin of Ong’s income over his expenses.94

The Court finds the appellate court’s decision erroneous. First, it should not have included the
spouse’s income in its assessment of Ong’s lucrative income.95 Second, it failed to consider the
following circumstances which have a bearing on Ong’s expenses vis-à-vis his income: (a) that Ong
does not own real property; (b) that his proven average gross annual income around the time of his
application, which was only ₱106,000.00, had to provide for the education of his four minor children;
and (c) that Ong’s children were all studying in exclusive private schools in Cebu City. Third, the CA
did not explain how it arrived at the conclusion that Ong’s income had an appreciable margin over
his known expenses.

Ong’s gross income might have been sufficient to meet his family’s basic needs, but there is simply
no sufficient proof that it was enough to create an appreciable margin of income over expenses.
Without an appreciable margin of his income over his family’s expenses, his income cannot be
expected to provide him and his family "with adequate support in the event of unemployment,
sickness, or disability to work."96

Clearly, therefore, respondent Ong failed to prove that he possesses the qualification of a known
lucrative trade provided in Section 2, fourth paragraph, of

the Revised Naturalization Law.97

The Court finds no merit in respondent’s submission that a Rule 45 petition precludes a review of the
factual findings of the courts below.98 In the first place, the trial court and appellate court’s decisions
contain conclusions that are bereft of evidentiary support or factual basis, which is a known
exception99 to the general rule that only questions of law may be entertained in a Rule 45 petition.

Moreover, a review of the decisions involving petitions for naturalization shows that the Court is not
precluded from reviewing the factual existence of the applicant’s qualifications. In fact,
1âwphi1

jurisprudence holds that the entire records of the naturalization case are open for consideration in an
appeal to this Court.100 Indeed, "[a] naturalization proceeding is so infused with public interest that it
has been differently categorized and given special treatment. x x x [U]nlike in ordinary judicial
contest, the granting of a petition for naturalization does not preclude the reopening of that case and
giving the government another opportunity to present new evidence. A decision or order granting
citizenship will not even constitute res judicata to any matter or reason supporting a subsequent
judgment cancelling the certification of naturalization already granted, on the ground that it had been
illegally or fraudulently procured. For the same reason, issues even if not raised in the lower court
may be entertained on appeal. As the matters brought to the attention of this Court x x x involve
facts contained in the disputed decision of the lower court and admitted by the parties in their
pleadings, the present proceeding may be considered adequate for the purpose of determining the
correctness or incorrectness of said decision, in the light of the law and extant jurisprudence."101 In
the case at bar, there is even no need to present new evidence. A careful review of the extant
records suffices to hold that respondent Ong has not proven his possession of a "known lucrative
trade, profession or lawful occupation" to qualify for naturalization.

WHEREFORE, premises considered, the petition of the Republic of the Philippines is GRANTED.
The Decision dated May 13, 2006 of the Court of Appeals in CA-G.R. CV No. 74794 is REVERSED
and SET ASIDE. The Petition for Naturalization of Kerry Lao Ong is DENIED for failure to comply
with Section 2, fourth paragraph, of Commonwealth Act No. 473, as amended.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO*

Associate Justice
Acting Chairperson

LUCAS P. BERSAMIN MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE**
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Acting Chairperson

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Footnotes

* Per Special Order No. 1226 dated May 30, 2012.

** Per Special Order No. 1227 dated May 30, 2012.

1
Republic v. Hong, 520 Phil. 276, 285 (2006); Ong Chia v. Republic, 385 Phil. 487, 498
(2000).

Republic v. Hong, 520 Phil. 276, 285 (2006); Tiu v. Republic, 158 Phil. 1137, 1138 (1974);
2

Que Tiac v. Republic, 150 Phil. 68, 86 (1972).

3
Rollo, pp. 28-34.

4
CA Decision, p. 7; id. at 33; penned by Associate Justice Enrico A. Lanzanas and concurred
in by Associate Justices Pampio A. Abarintos and Apolinario D. Bruselas, Jr.

5
SECTION 2. Qualifications. – Subject to section four of this Act, any person having the
following qualifications may become a citizen of the Philippines by naturalization:

First. He must be not less than twenty-one years of age on the day of the hearing of
the petition;

x x x x (Commonwealth Act No. 473, as amended)

6
Records, pp. 1-9.

7
Entitled An Act to Provide for the Acquisition of Philippine Citizenship by Naturalization, and
to Repeal Acts Numbered Twenty-Nine Hundred and Twenty-Seven and Thirty-Four
Hundred and Forty-Eight, as amended.

8
Records, p. 18-A (Exhibit "H"), pp. 65-68, 262-264, 461-464.

9
Id. at 19 (Exhibit "I"), pp. 20-22.
10
Id. at 16 (Exhibit "F").

11
Section 9. Notification and Appearance. – Immediately upon the filing of a petition, it shall
be the duty of the clerk of the court to publish the same at petitioner’s expense, once a week
for three consecutive weeks, in the Official Gazette, and in one of the newspapers of general
circulation in the province where the petitioner resides, and to have copies of said petition
and a general notice of the hearing posted in a public and conspicuous place in his office or
in the building where said office is located, setting forth in such notice the name, birthplace
and residence of the petitioner, the date and place of his arrival in the Philippines, the names
of the witnesses whom the petitioner proposes to introduce in support of his petition, and the
date of the hearing of the petition, which hearing shall not be held within ninety days from the
date of the last publication of the notice. x x x (Commonwealth Act No. 473, as amended)

12
Records, pp. 25-26.

Section 10. Hearing of the Petition. – x x x The hearing shall be public, and the Solicitor-
13

General, either himself or through his delegate or the provincial fiscal concerned, shall
appear on behalf of the Commonwealth of the Philippines at all the proceedings and at the
hearing. x x x (Commonwealth Act No. 473, as amended).

14
Respondent’s Certificate of Live Birth (Records, p. 530).

15
Records, p. 531 (Exhibit "N").

16
Id. at 532 (Exhibit "N-1").

17
Section 2. Qualifications. – x x x

xxxx

Second. He must have resided in the Philippines for a continuous period of not less
than ten years;

x x x x (Commonwealth Act No. 473, as amended)

18
Kerry Lao Ong’s direct examination, TSN dated November 26, 1998

19
Section 2. Qualifications. – x x x

xxxx

Fifth. He must be able to speak and write English or Spanish and any of the principal
Philippine languages;

x x x x (Commonwealth Act No. 473, as amended)

20
Kerry Lao Ong’s direct examination, TSN dated November 26, 1998, p. 12.

21
Records, p. 526 (Exhibit "J").
22
Id. at 527 (Exhibit "K").

23
Id. at 528-529 (Exhibits "L" and "L-1").

24
Id. at 534 (Exhibit "O").

25
Section 7. Petition for Citizenship. – Any person desiring to acquire Philippine citizenship
shall file with the competent court, a petition in triplicate, accompanied by two photographs of
the petitioner, setting forth x x x whether single or married and if the father of children, the
name, age, birthplace and residence of the wife and of each of the children; x x x
(Commonwealth Act No. 473, as amended)

26
Records, p. 536-A (Exhibit "Q").

27
Id. at 536 (Exhibit "R").

28
Id. at 537 (Exhibit "S").

29
Id. at 538 (Exhibit "T").

30
Section 2. Qualifications. – x x x

xxxx

Sixth. He must have enrolled his minor children of school age, in any of the public
schools or private schools recognized by the Office of Private Education of the
Philippines, where Philippine history, government and civics are taught or prescribed
as part of the school curriculum, during the entire period of the residence in the
Philippines required of him prior to the hearing of his petition for naturalization as
Philippine citizen. (Commonwealth Act No. 473, as amended)

31
Records, p. 559 (Exhibit "FF").

32
Id. at 560 (Exhibit "GG").

33
Section 7. Petition for Citizenship. – Any person desiring to acquire Philippine citizenship
shall file with the competent court, a petition in triplicate, accompanied by two photographs of
the petitioner, setting forth x x x his present and former places of residence x x x
(Commonwealth Act No. 473, as amended)

34
Kerry Lao Ong’s direct examination, TSN dated November 26, 1998, p. 5.

35
Id.

36
Id.

37
Id. at 6.

38
Id. at 2.
39
Records, p. 3.

40
Id. at 528-529 (Exhibits "L" and "L-1").

41
Kerry Lao Ong’s direct testimony, TSN dated November 26, 1998, p. 11.

42
Records, pp. 539-545 (Exhibits "U-X").

43
Section 4. Who are disqualified. The following can not be naturalized as Philippine citizens:

xxxx

(f) Persons who, during the period of their residence in the Philippines, have not
mingled socially with the Filipinos, or who have not evinced a sincere desire to learn
and embrace the customs, traditions, and ideals of the Filipinos;

x x x x (Commonwealth Act No. 473, as amended)

44
Kerry Lao Ong’s direct examination, TSN dated November 26, 1998, p. 15.

45
Id. at 16.

46
Records, p. 556 (Exhibit CC).

47
Section 4. Who are disqualified. The following can not be naturalized as Philippine citizens:

xxxx

(e) Persons suffering from mental alienation or incurable contagious diseases;

x x x x (Commonwealth Act No. 473, as amended)

48
Records, p. 548 (Exhibit "Y").

49
Id. at 549 (Exhibit "Z").

50
Id. at 550-551 (Exhibits "AA" and "BB").

51
Id. at 557 (Exhibit "DD").

52
Section 4. Who are disqualified. The following can not be naturalized as Philippine citizens:

xxxx

(d) Persons convicted of crimes involving moral turpitude;

x x x x (Commonwealth Act No. 473, as amended)

53
Bernard Sepulveda’s direct examination, TSN dated February 11, 1999, p. 7.
54
Id.

55
Id. at 9.

56
Rudy Carvajal’s direct examination, TSN dated February 11, 1999, p. 3.

57
Id. at 4-5.

58
Id. at 4.

59
RTC Decision, p. 2; rollo, p. 52; penned by Judge Benigno G. Gaviola.

60
Id. at 3; id. at 53.

61
Id. at 4-5; id. at 54-55.

62
SECTION 2. Qualifications. – Subject to section four of this Act, any person having the
following qualifications may become a citizen of the Philippines by naturalization:

xxxx

Fourth. He must own real estate in the Philippines worth not less than five thousand
pesos, Philippine currency, or must have some known lucrative trade, profession, or
lawful occupation;

x x x x (Commonwealth Act No. 473, as amended; emphasis supplied.)

63
Appellant’s Brief, pp. 11-13; CA rollo, pp. 24-26.

64
Appellee’s Brief, p. 5; id. at 52.

65
Id. at 7; id. at 54.

66
Id. at 6-7; id. at 53-54.

67
Id. at 6; id. at 53.

68
CA Decision, p. 7; rollo, p. 33.

69
CA rollo, pp. 74-82.

Rollo, p. 35; penned by Associate Justice Pampio A. Abarintos and concurred in by

70

Associate Justices Agustin S. Dizon and Priscilla Baltazar-Padilla.

71
CA Decision, p. 7; rollo, p. 33.

72
Petitioner’s Memorandum, p. 11; id. at 146.

73
Id. at 15-17; id. at 152-154.
74
Id. at 12-13; id. at 149-150.

75
Id. at 11-12; id. at 148-149.

76
Id. at 18-19; id. at 155-156.

77
Respondent’s Memorandum, pp. 9-12; id. at 127-130.

78
Id. at 13-16; id. at 131-134.

79
Republic v. Hong, supra note 1.

80
Ong Chia v. Republic, supra note 1; Republic v. Hong, supra note 1.

Republic v. Hong, supra note 1; Que Tiac v. Republic, supra note 2; Tiu v. Republic, supra
81

note 2.

82
Commonwealth Act No. 473, as amended.

In the Matter of the Petition of Ban Uan, 154 Phil. 552, 554 (1974); In the Matter of the
83

Petition of Tiong v. Republic, 157 Phil. 107, 108-109 (1974); Tan v. Republic, 121 Phil. 643,
647 (1965) (Emphasis supplied.).

Chua Kian Lai v. Republic, 158 Phil. 44, 48 (1974); In the Matter of the Petition of Tiong v.
84

Republic, supra at 109; In the Matter of the Petition of Ban Uan, supra at 555; Chiao v.
Republic, 154 Phil. 8, 13 (1974); Watt v. Republic, 150-B Phil. 610, 632 (1972) (Emphasis
supplied.)

Li Tong Pek v. Republic, 122 Phil. 828, 832 (1965). See also Uy v. Republic, 120 Phil. 973,
85

976 (1964).

Chiu Bok v. Republic, 245 Phil. 144, 146 (1988); Teh San v. Republic, 132 Phil. 221, 222
86

(1968); Lim Uy v. Republic, 121 Phil. 1181, 1190 (1965); Ong Tai v. Republic, 120 Phil.
1345, 1348-1349 (1964).

87
Rudy Carvajal’s direct testimony, TSN dated February 11, 1999, p. 4.

88
Kerry Lao Ong’s direct testimony, TSN dated November 26, 1998, p. 11.

89
RTC Decision, p. 3; rollo, p. 53.

90
Records, p. 3.

91
Kerry Lao Ong’s direct testimony, TSN dated November 26, 1998, p. 11.

92
Records, p. 3; rollo, p. 53.

93
Id.

94
CA Decision, p. 7; rollo, p. 33.
95
Li Tong Pek v. Republic, supra note 85. See also Uy v. Republic, supra note 85.

In the Matter of the Petition of Tiong v. Republic, supra note 83; In the Matter of the Petition
96

of Ban Uan, supra note 83; Tan v. Republic, supra note 83 (Emphasis supplied.)

Chiu Bok v. Republic, supra note 86 at 146-147 (1988); Chua Kian Lai v. Republic, supra
97

note 84 at 48-49 (1974); In the Matter of the Petition of Tiong v. Republic, supra note 83 at
109; Ong v. Republic, 156 Phil. 690, 692 (1974); In the Matter of the Petition of Ban Uan,
supra note 83 at 554-555; Que Tiac v. Republic, supra note 2 at 100; Uy v. Republic, 147
Phil. 230, 233-234 (1971); Li Tong Pek v. Republic, supra note 85 at 831-832; Uy Ching Ho
v. Republic, 121 Phil. 402, 406-407 (1965); Keng Giok v. Republic, 112 Phil. 986, 991-992
(1961).

98
Respondent’s Memorandum, pp. 9-12; rollo, pp. 127-130.

99
As a rule, findings of fact of the CA are binding and conclusive upon this Court, and will not
be reviewed or disturbed on appeal unless the case falls under any of the following
recognized exceptions: "(1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded
entirely on speculations, surmises or conjectures; (4) when the judgment of the CA is based
on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when the
CA, in making its findings, went beyond the issues of the case, and those findings are
contrary to the admissions of both appellant and appellee; (7) when the findings of the CA
are contrary to those of the trial court; (8) when the findings of fact are conclusions without
citation of specific evidence on which they are based; (9) when the CA manifestly overlooked
certain relevant facts not disputed by the parties and which, if properly considered, would
justify a different conclusion; and, (10) when the findings of fact of the CA are premised on
the absence of evidence and are contradicted by the evidence on record." (Bank of the
Philippine Islands v. Reyes, G.R. No. 157177, February 11, 2008, 544 SCRA 206, 215).
Emphasis supplied.

Go Im Ty v. Republic, 124 Phil. 187, 196 (1966); Tio Tek Chai v. Republic, 120 Phil. 1010,
100

1013 (1964).

101
Republic v. Reyes, 122 Phil. 931, 934 (1965).
G.R. No. 210412

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
KAMRAN F. KARBASI, Respondent.

DECISION

MENDOZA, J.:

The Contracting States shall as far as possible facilitate the assimilation and naturalization of
refugees. They shall in particular make every effort to expedite naturalization proceedings and to
reduce as far as possible the charges and costs of such proceedings. 1

This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the January
29, 2013 Decision2 and the November 27, 20133 Resolution of the Court of Appeals (CA), in CA-G.R.
CV No. 01126-MIN, which affirmed the January 17, 2007 Order of the Regional Trial Court, Branch
10, Dipolog City (RTC), in a naturalization case docketed as Naturalization Case No. 2866. The RTC
order granted the petition for naturalization and, thus, admitted Karman F. Karbasi as a citizen of the
Philippines.

The Facts

On June 25, 2002, Kamran F. Karbasi (Karbasi) filed a petition for naturalization with the RTC,
where he alleged the following:

1. His full name is Kamran F. Karbasi;

2. He is recognized as a Person of Concern by the United Nations High Commissioner for

Refugees (UNHCR) as shown in a certification duly issued by the UNHCR;

3. He is presently residing with his family at 341 Burgos Street, Dipolog City, since early part of June
2000 and more so has resided continuously in the Philippines for not less than 11 years immediately
preceding the date of this petition; to wit, since 11 July 1990 and in Dipolog City for more than one
(1) year;

4. His last place of foreign residence was Pakistan and his other places of residence, prior to his
present residence, were as follows (i) Panay Ave., Quezon City; (ii) Sta. Filomena, Dipolog City; (iii)
Capitol Area, Dumaguete City; (iv) Dohinob, Roxas, Zamboanga del Norte;

5. He was born on 4 September 1966 in Tehran, Iran, as shown in his identity card which also
serves as his birth certificate;

6. He is married and is the father of one (1) child;

7. His wife Cliji G. Lim Karbasi is a Filipino citizen, 22 years old and born on 10 August 1979 in Cebu
City, whom he married on 12 October 2000 in Dipolog City, as shown in

their certificate of marriage;

8. His child, Keenyji L. Karbasi, 1-year old , was born on 9 June 2001 in Dipolog City and presently
residing with him and his wife at 341 Burgos Street, Dipolog City;

9. He arrived in Manila, Philippines, under an assumed name (Syed Gul Agha) from Pakistan on 11
July 1990 specifically at the Manila International Airport on board Philippine Airlines Flight No. 731,
per UNHCR certification containing reference to his Pakistani passport issued under said assumed
name;

10. Due to his marriage, he is entitled to the benefit of Section 3 of Commonwealth Act No. 473,
which reduced to five years the ten year requirement of continuous residence;

11. He speaks and writes English and Visayan;

12. His trade or occupation is as a repair technician in which he has been engaged since 1998 and,
as such, he derives an average annual income of Php 80,000.00 more or less;

13. He has all the qualifications required under Section 2 and none of the disqualifications under
Section 4, of the Commonwealth Act No. 473;

14. He has complied with the requirements of the Naturalization Law (Commonwealth Act No. 473)
regarding the filing with the Office of the Solicitor General of his bona fide intention to become a
citizen of the Philippines, as shown in his Declaration of Intention duly filed on 25 May 2001;

15. It is his intention in good faith to become a citizen of the Philippines and to renounce absolutely
and forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, and
particularly to Iran of which, at this time, he is a citizen or subject; that he will reside continuously in
the Philippines from the date of filing of this petition up to the time of his admission to Philippine
citizenship;

16. Dominador Natividad Tagulo, of legal age, Filipino, married and residing at ABC Compound,
Quezon Ave., Miputak, Dipolog City and Alton C. Ratificar, of legal age, Filipino, married and
residing at 047 Burgos Street, Dipolog City, who are Filipino citizens, whose affidavits are attached
to his petition, will appear and testify as witnesses at the hearing thereof.

[Emphasis Supplied]

On July 2, 2002, after finding the petition sufficient in form and substance, the RTC issued an order
setting the petition for hearing on October 21, 2002 and ordering the publication thereof, once a
week for three (3) consecutive weeks, in the Official Gazette and in a newspaper of general
circulation in Zamboanga del Norte and in the cities of Dipolog and Dapitan. In the same Order,
persons concerned were enjoined to show cause, if any, why the petition should not be granted and
oppose the petition.

On July 22, 2002, the RTC amended its previous order and, with notice to the Office of the Solicitor
General (OSG), reset the hearing on September 10, 2003 instead because the National Printing
Office could no longer accommodate the publication requirement before the first hearing date.

On December 2, 9 and 16, 2002, copies of the amended order and Karbasi’s petition were published
in the Official Gazette. Subsequently, the same were published in Press Freedom on January 27,
February 3 and 10, 2003. The said copies were likewise posted on the bulletin boards of the RTC
and the Municipal Building of Roxas, Zamboanga del Norte and Capitol Building, Dipolog City.
On September 10, 2003, Karbasi and his counsel appeared and presented proof of compliance with
the jurisdictional requirements. Nobody appeared to interpose an objection to the petition. During the
hearing on May 18, 2006, Alton C. Ratificar (Ratificar) and Dominador Natividad
Tagulo (Tagulo) testified as character witnesses.

Ratificar testified that in 1990, he was introduced to Karbasi whose house was located about 30
meters away from his; that he came to know him since then; that when Karbasi got married, he was
invited to the wedding ceremony where the then City Mayor of Dipolog was one of the wedding
sponsors; that he also attended the celebration; that he used to see Karbasi almost every day as he
owned an electronics repair shop near his house; that Karbasi would also allow neighbors, who did
not own television sets at home, to watch shows at his repair shop; that he never heard of any
complaint by the neighbors against Karbasi, who went to church during Sundays and even on
weekdays; that on several occasions, he was invited to Karbasi’s home, where he observed his
good relationship with his in-laws and his treatment of his wife and child which was in accordance
with Filipino customs; and that Karbasi talked to him in both Visayan and English.

For his part, witness Tagulo testified that he worked at the Andres Bonifacio College and had known
Karbasi since July 1990 when the latter was then enrolled in a vocational course; that Karbasi was
very respectful to his instructors and that he had good grades; that he treated his schoolmates in
accordance with Filipino customs; that he never showed any inclination to violence; that when
Karbasi transferred to Dumaguete City, he visited him there; and that during this visits, Tagulo
witnessed how Karbasi socially interacted and mingled with the rest of the community.

On August 10, 2006, the wife of Karbasi, Cliji G. Lim (Cliji), also took the witness stand. She testified
that her father introduced her to Karbasi during her graduation party; that a courtship followed
thereafter for five months, during which Karbasi was well-behaved and acted like any other Filipino;
that when Karbasi proposed marriage to her, he was accompanied by his brother, Ali Karbasi; that
Karbasi’s baptism as a Catholic coincided with her birthday; that after their marriage, they begot two
(2) children; that Karbasi continuously stayed with his family and never returned to Iran; that he was
a good husband, father and provider; that all his income from the repair shop was turned over to her
for the budgeting of the family’s expenses; and that he was then earning a daily income of
P1,000.00.

She added that Karbasi and his family regularly attended the Catholic mass and received
communion; that they were active members of Couples for Christ since 2003; that he actively
participated in Catholic practices like the novena and vigil for her deceased grandfather; that Karbasi
was not a polygamist and that he did not flirt with other women; that she never heard her husband
speak of any terrorist groups; and that he was never known to have an immoral reputation.

On several hearing dates thereafter, Karbasi himself took the witness stand. As summarized by the
RTC, the gist of his testimony is as follows:

He is an Iranian national. He was born in Tehran, Iran, and resided there since birth up to 1986. His
father is Abdolhossein Karbasi, a doctor in Iran, and his mother is Narjes Froghnia Karbasi, a retired
teacher.

He has five brothers and two sisters. The eldest of the brood, Hamid Reza Karbasi, is in the United
States of America and is now an American Citizen. The second, Dr. Ali Reza Karbasi, admitted as
Filipino citizen in the Regional Trial Court, Branch 6, Dipolog City, is in the Philippines. The third is
Qite Karbasi, his sister. The fourth, his brother, Dr. Abduoul Reza Karbasi, graduated in India. The
fifth, his sister, Kia Karbasi, is a nurse. The sixth, his brother Qolam Reza Karbasi, is an engineer
who graduated in France. His last four siblings are all in Iran.
He was a Shiite Muslim before he was converted as Roman Catholic. His former religion believes in
the existence of a Supreme Being called God. It believes in the existence of government and
repudiates violence. His said religion is not within an organization of Al Qaeda, Jemayah Islamiya, or
any terrorist group. It also adheres to the principle of one man-one woman marital relation. He and
his brother, Ali Reza Karbasi, left Iran in 1986 because of the war between Iran and Iraq at that time.
When the Shah of Iran, Pahlavi, was overthrown by Ayatolah Khomini in 1979, some Iranian
nationals left Iran. He and Ali Reza, who also condemns the act of overthrowing an existing
government by force and violence, were among those who left. Since the government confiscated
his passport, they traveled by camel and passed by the desert during night time to reach Pakistan.
He stayed there for almost three (3) years,

Being foreigners in Pakistan, they submitted themselves to the United Nations High Commissioner
for Refugees. However, they were not granted the status of refugee right away since Pakistan is
adjacent to Iran. They had to transfer to a third country not at war with Iran. Since his brother Ali
Reza was already studying in the Philippines, they decided to come here.

As it was difficult for him to get travel documents, petitioner procured a Pakistani passport under the
assumed name of Syed Gul Agha.

Upon his arrival in the Philippines on July 11, 1990, he submitted himself to the United Nations in
Manila. After several interviews, he was admitted as a refugee and, later on, as a person of concern.
As a refugee, he was granted by the United Nations allowances, medical benefits and protection to
some extent.

After having been interviewed by the Solicitor General regarding his intention to become a Filipino
citizen, he filed the corresponding Declaration of Intention, dated March 28, 2001, on May 25, 2001.

Sometime in 2002, petitioner, having signified his intention to become a Filipino citizen, was issued a
certification captioned "UN High Commissioner for Refugees, Liaison Office for the Philippines,"
dated 25 June 2002, certifying that he has been recognized as a person of concern who arrived in
the Philippines on 11 July 1990 on board Philippine Airlines flight 731 under an assumed name
(Syed Gul Agha).

At the time of the filing of the petition, he was already married and residing at 341 Burgos Street,
Dipolog City. However, upon arrival in the Philippines, he first resided at Panay Avenue, Quezon
City, where he stayed for almost six months. During those times, the United Nations provided him a
monthly allowance of P2,800.00, being a refugee. He then transferred to Burgos Street, Miputak,
Dipolog City, where he stayed at the house of the fatherin- law of his brother Ali Reza for a month.

He then moved to Sta. Filomena, Dipolog City, at the house of his sister-in-law. It was during this
time that he enrolled at Andres Bonifacio College where he studied from 1990 to 1992. He finished a
two-year vocational course in said school as evidenced by a Diploma issued by the Andres Bonifacio
College, Dipolog City. In Iran, he finished Bachelor of Science in Economics.

He then pursued a four-year course (Bachelor of Science in Industrial Technology Major in

Electronics) at the Central Visayas Polytechnic College in Dumaguete City. He resided in the Capitol
Area of said city. He was already receiving a monthly allowance of P4,800.00 from the United
Nations at that time. He graduated from said institution as evidenced by a Diploma issued by said
school. He also attended technical trainings conducted by Asian Durables Manufacturing, Inc. as
evidenced by a Certificate of Attendance issued by said company.
In 1996, he returned to Dipolog City and resided at Burgos Street where he opened his electronics
repair shop (KX3 Electronics Repair Shop).

On October 12, 2000, he got married. The couple transferred to the house of his parents-in-law after
the marriage. When the grandfather of his wife got ill, they were requested to take care of him. Thus,
the couple transferred their residence to Dohinob, Roxas. However, they moved back to their house
in Burgos Street, Dipolog City, as it is nearer to a hospital. When his grandfather-in-law died, he
participated in all the rites and ceremonies relative to his wake and burial.

At present, his repair shop’s gross monthly income hovers between P20,000.00 to P25,000.00."4

Additionally, Karbasi claimed that he had never been involved in any demonstration or mass action
protesting any issuances, policies or acts of the Philippine Government and its officials; that he had
never made any rebellious or seditious utterances; that he believed in the principles underlying the
Philippine Constitution and he had even memorized the preamble; and that he can also sing the
Philippine National Anthem and recite the Filipino Patriotic Pledge, both of which he did in open
court.

The following documents were proffered in Karbasi’s Formal Offer of Exhibits: 1] Identity Card issued
by Iran to prove his Iranian citizenship; 2] Pakistani passport with visa under the assumed name of
Syed Gul Agha; 3] Certifications and Identification Card issued by the UNHCR to prove his status as
a refugee and, later, as a "person of concern"; 4] Alien Certificate of Registration; 5] Certifications to
prove Filipino nationality of Karbasi’s wife, Cliji G. Lim; 6] Certificate of Marriage between Karbasi
and Cliji; 7] Certificates of Live Birth of his children Keenyji and Kerl Jasmen; 8] Karbasi’s Certificate
of Baptism; 9] Affidavits of his character witnesses Alton C. Ratificar and Dominador Tagulo; 10]
Police and NBI Clearances; 11] Certifications and Diploma to prove his completion of vocational
technology, BS Industrial Technology, and training seminars; 12] Alien Employment Permit for
Refugees; 13] Business Permit, Clearances and DTI Certificates of Accreditation to KX3 Repair
Shop, Karbasi’s source of livelihood; 14] Income Tax Returns for the years 2001 to 2005; and 15]
Contract of Service with Quality Circuits Services, Inc. and Kolins Philippines Intl. Inc., including a
Summary of Accounts paid to KX3 Electronics Repair Shop.5

On January 17, 2007, the RTC found Karbasi’s evidence sufficient to support his petition. Finding
Karbasi as possessing all the qualifications and none of the disqualifications to become a Filipino
citizen, the RTC rendered its decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the petition for naturalization filed by KAMRAN F. KARBASI
to be admitted as citizen of the Philippines is hereby GRANTED.

SO ORDERED.6

Not in conformity, the Republic of the Philippines, through the Office of the Solicitor
General (OSG), interposed an appeal to the CA, based mainly on the ground that the RTC erred in
granting Karbasi’s petition as he failed to comply with the provisions of Commonwealth Act No.
473 (Naturalization Law) on character, income and reciprocity. Specifically, the OSG pointed out that
Karbasi failed to establish that: 1] Iran grants reciprocal rights of naturalization to Filipino citizens; 2]
he has a lucrative income as required under the law; and 3] he is of good moral character as shown
by his disregard of Philippine tax laws when he had underdeclared his income in his income tax
returns (ITRs) and overstated the same in his petition for naturalization.

On January 29, 2013, the CA rendered the assailed decision affirming the grant of Filipino
citizenship to Karbasi. The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, the appeal is DENIED. The Decision dated 17 January 2007
of the Regional Trial Court of Dipolog City, Branch 10 in Naturalization Case No. 2866
is AFFIRMED.

SO ORDERED.7

The CA ruled that the alleged under declaration in Karbasi’s ITRs was prepared in good faith
because he was of the belief that he no longer needed to include the income he received as
payment of his services to Daewoo Electronics Electronics Services, Inc. (Daewoo) and Kolins
Philippines International, Inc. (Kolins), because the same were already withheld at source. The CA
likewise affirmed the RTC finding that Karbasi, as a refugee, need not prove reciprocity between
Philippine and Iranian laws.

Hence, this petition.

Position of the OSG

The OSG asserts that the findings of the courts a quo are not in accord with law and jurisprudence
because Karbasi failed to prove that he had a lucrative income and an irreproachable character. It
insists that Karbasi failed to establish his lucrative income considering that at the time of the filing of
his petition for naturalization in 2002, his gross income was P21,868.65. Per table of Annual Income
and Expenditure in Western Mindanao, the average income for the year 2000 was P86,135.00 and
for 2003 was P93,000.00. This shows that Karbasi’s declared gross income was way below the
average income and average expenses in Western Mindanao, the region where Dipolog City, his
residence, is located. The OSG argues that even if the subsequent years were to be considered,
Karbasi’s income was still insufficient as compared to the average income and expenditure in the
area. Karbasi’s declared income for the years 2003, 2004 and 2005 were P31,613.00, P41,200.00
and P39,020.00, respectively. The same table presentation, however, provides that the average
expenditure for the year 2000 was P69,452.00, and for the year 2003 was P75,000.00. This shows
that Karbasi’s declared gross income was not enough to support his family within the contemplation
of the law. Whether based on his testimony or on his ITRs, Karbasi’s gross income was not
adequate, given the high cost of living prevailing in the region. The OSG also mentions that
Karbasi’s child had started formal schooling which would entail substantial income on the part of
Karbasi, so that he could meet his family’s needs.

The OSG cites the discrepancy between his petition for naturalization and his ITRs as another
reason to deny his application for Filipino citizenship. An examination of the petition discloses that
Karbasi claimed an annual income of P80,000.00. He had also declared in his testimony that he was
earning P20,000.00 to P25,000.00, monthly, from his electronic repair shop. His ITRs on the other
hand, show his gross income as P14,870.00 in 2001; P21,868.65 in 2002; P31,613.00 in 2003;
P41,200.00 in 2004; and P39,020.00 in 2005.

The OSG further argues that the "underdeclaration" of Karbasi’s income in his ITRs reflects his
disregard of Philippine tax laws and, worse, its overstatement in his petition indicates his intent to
make it appear that there was compliance with the Naturalization Law, when there was actually
none. According to the OSG, this negates irreproachable behavior which required of every applicant
for naturalization because the failure to enter the true income on the tax return is indicative of
dishonesty. The OSG cited the ruling in Republic v. Yao,8 where the Court ordered the cancellation
of the naturalization certificate issued to the applicant therein upon the discovery of his
underdeclaration and underpayment of income tax. In the OSG’s words, "[u]nderdeclaration of
income is a serious matter that it is used as a ground to cancel the certificate of naturalization. If the
court can reverse the decision in an application for naturalization, with more reason can
underdeclaration be considered in denying an application," as in Karbasi’s case.9

Position of Karbasi

In the April 7, 2014 Resolution of the Court, Karbasi was required to file a comment on the petition in
which he mainly argued that the petition did not raise questions of law but questions of facts which
were too unsubstantial to require consideration. He countered that while, admittedly, the "lucrative
trade/occupation" requirement under the law must be complied with, it has been emphasized in
jurisprudence that, the objective of this economic requirement is to ensure that the applicant should
not become a public charge or an economic burden upon the society.10Karbasi claims that he had
more than satisfactorily established his lucrative trade or occupation, showing that he would become
a citizen who could contribute to national progress. This has been clearly and unanimously
appreciated by the RTC and the CA.

Karbasi also avers that the analysis of the OSG with respect to the data on Annual Income and
Expenditure in Western Mindanao is misplaced. Firstly, the data presented were merely statistical
and not actual, and did not reflect the circumstances relative to a specific subject or person. Hence,
these are greatly unreliable with respect to a specific person in a naturalization case. At best, it was
only intended for the purpose it was made – for planning and for policy making of the government
and not to determine whether a certain trade, occupation or income is lucrative or not.

Anent the allegation that the underdeclaration of his income projects was a flaw on his moral
character, Karbasi point out that he had sincerely explained that his failure to declare his correct
annual income was in good faith not intended to commit fraud. He believed that the other sources of
his income apart from his repair shop had already been withheld by the companies for whom he had
rendered services. For Karbasi, the meaning of "irreproachable" as required by the law does not
mean "perfectly faultless."

On September 18, 2014, Karbasi moved for leave of court to file a supplemental pleading, in which
he insisted that pursuant to the 1951 Convention Relating to the Status of Refugees and the 1967
Protocol Relating to the Status of Refugees, to which the Philippines was a signatory, the country
was bound to safeguard the rights and well-being of the refugees and to ensure the facility of their
local integration including naturalization. Karbasi reasoned that this was precisely why Department
Circular 58 Series of 2012 was issued by the Department of Justice (DOJ). Under the said circular,
the Refugees and Stateless Persons Unit was created not only to facilitate the identification and
determination of refugees but also for the protection of these refugees.

Karbasi insisted that unlike any other alien applying for naturalization, he had to leave Iran out of
fear of persecution without any mental and financial preparation, and only with a view of finding safe
refuge in the Philippines.

Reply of OSG

In its Reply, the OSG contended that Karbasi could not downplay the significance of the Data on
Annual Income and Expenditure in Western Mindanao, as it was an accurate illustration of the
financial condition of a typical family in a particular region. The said table was prepared by the
National Statistics Coordination Board (NSCB), which strengthened the credibility of the report. The
OSG explained that whether the data were statistical or actual, the numbers still reflected the
financial standing of Karbasi. It followed then that Karbasi could not claim good faith in failing to
declare the income he gained from his transactions with several companies. He even failed to
present a certificate of tax withheld to show that these companies had actually remitted the
withholding taxes due to the Bureau of Internal Revenue. Even assuming that Karbasi’s declared
income allegedly excluded the amount withheld by these companies, the OSG claimed that his
income would still be below the standard income and expenditure per the table.

The Court’s Ruling

The Court is confronted with the issue of whether or not the CA had correctly affirmed the RTC
decision granting Karbasi’s application for naturalization despite the opposition posed by the OSG.

Citizenship is personal and, more or less a permanent membership in a political community. It

denotes possession within that particular political community of full civil and political rights subject to
special disqualifications. Reciprocally, it imposes the duty of allegiance to the political
community.11 The core of citizenship is the capacity to enjoy political rights, that is, the right to
participate in government principally through the right to vote, the right to hold public office and the
right to petition the government for redress of grievance.12

No less than the 1987 Constitution enumerates who are Filipino citizens.13 Among those listed are
citizens by naturalization. Naturalization refers to the legal act of adopting an alien and clothing him
with the privilege of a native-born citizen. Under the present laws, the process of naturalization can
be judicial or administrative. Judicially, the Naturalization Law provides that after hearing the petition
for citizenship and the receipt of evidence showing that the petitioner has all the qualifications and
none of the disqualifications required by law, the competent court may order the issuance of the
proper naturalization certificate and its registration in the proper civil registry. On the other hand,
Republic Act (R.A.) No. 9139 provides that aliens born and residing in the Philippines may be
granted Philippine citizenship by administrative proceeding by filing a petition for citizenship with the
Special Committee, which, in view of the facts before it, may approve the petition and issue a
certificate of naturalization.14 In both cases, the petitioner shall take an oath of allegiance to the
Philippines as a sovereign nation.

It is a well-entrenched rule that Philippine citizenship should not easily be given away.15 All those
seeking to acquire it must prove, to the satisfaction of the Court, that they have complied with all the
requirements of the law. The reason for this requirement is simple. Citizenship involves political
status; hence, every person must be proud of his citizenship and should cherish it. Naturalization is
not a right, but one of privilege of the most discriminating, as well as delicate and exacting nature,
affecting, as it does, public interest of the highest order, and which may be enjoyed only under the
precise conditions prescribed by law therefor.16

Jurisprudence dictates that in judicial naturalization, the application must show substantial and
formal compliance with the law. In other words, an applicant must comply with the jurisdictional
requirements; establish his or her possession of the qualifications and none of the disqualifications
enumerated under the law; and present at least two (2) character witnesses to support his
allegations.17 Section 2 of the Naturalization Law clearly sets forth the qualifications that must be
possessed by any applicant, viz:

Section 2. Qualifications. – Subject to section four of this Act, any person having the following
qualifications may become a citizen of the Philippines by naturalization:

First. He must be not less than twenty-one years of age on the day of the hearing of the petition;

Second. He must have resided in the Philippines for a continuous period of not less than ten years;
Third. He must be of good moral character and believes in the principles underlying the Philippine
Constitution, and must have conducted himself in a proper and irreproachable manner during the
entire period of his residence in the Philippines in his relation with the constituted government as
well as with the community in which he is living.

Fourth. He must own real estate in the Philippines worth not less than five thousand pesos,
Philippine currency, or must have some known lucrative trade, profession, or lawful
occupation;

Fifth. He must be able to speak and write English or Spanish and any one of the principal Philippine
languages;

Sixth. He must have enrolled his minor children of school age, in any of the public schools or private
schools recognized by the Office of Private Education1 of the Philippines, where the Philippine
history, government and civics are taught or prescribed as part of the school curriculum, during the
entire period of the residence in the Philippines required of him prior to the hearing of his petition for
naturalization as Philippine citizen.

[Emphasis supplied]

The contention in this case revolves around the following points:

1. the sufficiency of Karbasi’s income for purposes of naturalization;

2. the effect of the alleged discrepancy in the amounts of his gross income as declared in his ITRs,
on one hand, and in his petition for naturalization on the other; and

3. the necessity of proving reciprocity between Iranian and Philippine laws on naturalization.

The Court resolves these issues in seriatim.

First. A reading of the OSG’s pleadings discloses that its position arose out of a comparison made
between Karbasi’s declared income and the amounts reflected in the Data on Annual Income and
Expenditure in Western Mindanao issued by the NSCB. The OSG also invokes the past rulings of
the Court where the concept of "lucrative trade, trade, profession or lawful occupation" was
explained in this wise:

It means not only that the person having the employment gets enough for his ordinary necessities in
life. It must be shown that the employment gives one an income such that there is an appreciable
margin of his income over his expenses as to be able to provide for an adequate support in the
event of unemployment, sickness, or disability to work and thus avoid one’s becoming the object of
charity or a public charge. His income should permit him and the members of his family to live with
reasonable comfort, in accordance with the prevailing standard of living, and consistently with the
demands of human dignity, at this stage of our civilization.18

A long line of cases reveals that the Court did not hesitate in reversing grants of citizenship upon a
showing that the applicant had no lucrative income and would, most likely, become a public charge.
A summary of some of these notable cases is in order:

1. In the Matter of the Petition for Admission to Philippine Citizenship of Engracio Chan also
known as Nicasio Lim.19– The Court found that the petitioner, who was a salesman at the
 Caniogan Sari-Sari and Grocery Store, then located in Pasig, Rizal, from which he received
a monthly salary of P200.00, with free board and lodging, had no lucrative income. Even if
the petitioner was then an unmarried man without dependents, a monthly income of P200.00
with free board and lodging, was not considered gainful employment. Further, there was no
proof that he was legally authorized to use an alias and his use thereof, being in violation of
the Anti-Alias Law, was indicative of a reproachable conduct.

2. In the Matter of the Petition of Antonio Po to be admitted a Citizen of the Philippines.20–

The Court found Antonio Po, then single and employed as collector of the Surigao Chamber
of Commerce as without lucrative income on the ground that his employment had so long
depended upon the selection of the succeeding presidents of the chamber and that he then
got free board and lodging by living with his widowed mother. Simply put, there was not
enough stability in his claimed salary. His additional income gained from helping his mother
to run a store was also insufficient to satisfy the law, in the amount and in its steadiness. His
free board and lodging pretense was also discerned as indicative of dependence upon his
mother for support.

3. In the Matter of the Petition of Tanpa Ong Alias Pedro Tan to be admitted a Citizen of the
Philippines.21– The income of the applicant as contemplated in the naturalization law was
only P3,000.00 a year. Considering that he had a wife and seven children to support, this
income was held as insufficient to meet the high cost of living at that time.

4. Keng Giok v. Republic.22– The Court held that an income of P9,074.50 per annum was not
sufficient for a married applicant with a wife and five children to support.

5. Sy Ang Hoc vs. Republic.23– The Court held that his income, derived from employment in a
business enterprise of the petitioner's father, was not sufficient to establish compliance with
the statutory requirement of lucrative occupation or calling.

6. In the Matter of the Petition to be admitted a Citizen of the Philippines by Pantaleon Sia
alias Alfredo Sia.24–The Court ruled that the determination of lucrative income or occupation
should be reckoned as of the time of the filing of the petition. The Court decided against the
petitioner as his regular salary was not ample enough to defray his family’s expenses. The
excess amounts representing his bonuses and commissions should not be considered in
determining whether or not petitioner had a lucrative income or occupation.

With the pronouncements in these cases in mind, the comparison made by the OSG now begets
another question: can the possession of an applicant’s lucrative trade, profession or lawful
occupation, for purposes of naturalization, be fairly determined through a simplistic read-through on
government data?

The Court answers in the negative.

While it is true that a naturalization case is not an ordinary judicial contest to be decided in favor of
the party whose claim is supported by the preponderance of the evidence, this does not accord
infallibility on any and all of the OSG’s assertions. If this were the case, the rules of evidence might
as well be brushed aside in order to accord conclusiveness to every opposition by the Republic.
Needless to state, the Court still has the final authority and duty to evaluate the records of
proceedings a quo and decide on the issues with fair and sound judgment.

Here, it is clear that the circumstances prevailing in the above-cited cases are not at all attendant in
Karbasi’s situation. There was neither a showing that Karbasi was dependent on another person for
support nor proof that his family’s extraordinary expenses that would render his income as
inadequate. As in any other business venture, the risk of losses is a possibility for his repair shop
but, still, this risk was not clearly established to render his livelihood as unstable and volatile. In fact,
the OSG does not belie the fact that Karbasi has been engaged by reputable companies for his
services. Conversely, the findings of the RTC would indicate that Karbasi had indeed exhibited
industry and hard work in putting up his repair shop business and that his wife considered him as a
good provider, not to mention a vocational and college degree holder. Admittedly, testimonies in
favor of an applicant for naturalization are expected to be self-serving. Nevertheless, the Court finds
it difficult to agree with the OSG’s meager use of government data to prove that Karbasi would
become a burden to the Philippine society in the future. Except for its own citation of government
data, nothing else was presented to establish that Karbasi had indeed no lucrative income or trade
to support himself and his family.

To accept the OSG’s logic is a dangerous precedent that would peg the compliance to this
requirement in the law to a comparison with the results of research, the purpose of which is unclear.
This is not to say that the data produced by government research are inappropriate, or much less
irrelevant in judicial proceedings. The plain reliance on this research information, however, may not
be expected to produce the force of logic which the OSG wants to attain in this case. Besides, had
the law intended for government data on livelihood and income research to be used as a gauge for
the "lucrative income" requirement, it must have stated the same and foreclosed the Court’s power
to assess existing facts in any given case. Here, the Court opts to exercise this power and delve into
a judicious review of the findings of the RTC and the CA and, as explained, to rule that Karbasi,
possesses a lucrative income and a lawful occupation, as required by the Naturalization Law. 1âwphi1

At this point, it is worthy to note the Court’s ruling in Republic v. Court of Appeals and
Chua25(Chua), where the Court assessed the prevailing circumstances of an applicant for
naturalization who was a medical student at the time of the filing of her petition. In Chua, the Court
rejected the Republic’s argument that the applicant’s status as a subsequent passer of the Board
Examinations of 1985 for Doctors of Medicine could not by itself be equated with "gainful
employment or tangible receipts." The Court held that this interpretation of the income requirement in
the law is "too literal and restrictive." It then cited Uy v. Republic,26 where the Court laid down the
public policy underlying the lucrative income requirement as follows:

[T]he Court must be satisfied that there is reasonable assurance not only that the applicant will not
be a social burden or liability but that he is a potential asset to the country he seeks to adopt for
himself and quite literally, for his children and his children's children.

The Court, in Chua, continued:

The economic qualification for naturalization may be seen to embody the objective of ensuring that
the petitioner would not become a public charge or an economic burden upon society. The
requirement relates, in other words, not simply to the time of execution of the petition for
naturalization but also to the probable future of the applicant for naturalization. In the case at bar, the
Solicitor General does not dispute that respondent applicant, then a student, was earning P2,000.00
a month, with free board and lodging, at the time she filed her Petition in August 1984. While this
amount was not, even in 1984, exactly a princely sum, she was not then a public charge and the
respondent applicant having passed the qualifying medical board examinations, can scarcely be
regarded as likely to become a public charge in the future should she be admitted as a citizen of this
Republic. Respondent is certainly in a position to earn substantial income if allowed to exercise her
profession. Being a Doctor of Medicine, she is also clearly a "potential asset to the country."27
As in Chua’s case, it does not at all seem likely that Karbasi, in his current circumstances, will ever
become a public charge. It bears emphasis to note that from a refugee who had nothing when he
came to the Philippines, Karbasi had indeed refused to be the object of charity by working hard to
graduate from college and to eventually engage in business to give his family support and comfort.
The CA could not have explained this in better terms—

Thus, Karbasi went from being a refugee – who was dependent on the UNCHR for support – to a
self-made entrepreneur who can ably support himself and his family. As such, there is no showing
that Karbasi may turn out to be a public charge and a burden to our country’s resources. The fact
moreover that he overcame this adversity through his education and skills shows that he is a
potential asset of the country.

Second. The OSG raised the issue of Karbasi’s alleged underdeclaration of income in his ITRs. It
contended that even if Karbasi had, indeed, a lucrative means of earning, his failure to declare the
income which he had earned from service contracts and to present any proof of the withholding of
the taxes thereon, would reflect adversely on his conduct, which under the statute must be "proper
and irreproachable." The OSG cited Lim Eng Yu v. Republic28(Lim Eng Yu), where the applicant later
refuted the amounts reflected in his ITRs in order to prove that he had lucrative trade or occupation.
The Court rebuffed this "eleventh hour explanation" and concluded that the applicant had to conceal
his true income for the purpose of evading payment of lawful taxes. The Court found that Lim Eng
Yu, at that time, had a wife and two children, so, at most, his total tax exemption then, was
P5,000.00. Had he stated the net incomes he claimed in his ITRs, he would have been required to
pay income taxes, it appearing that the same exceeded his exemption under the law. Such conduct
showed that Lim Eng Yu’s moral character was not irreproachable, or as good as it should be, thus,
disqualifying him for naturalization.

Like the CA, the Court is inclined not to apply the rigidity of the ruling in Lim Eng Yu to the present
case. Unlike Lim Eng Yu, Karbasi did not deny the charge of the OSG and instead admitted a
procedural lapse on his part. Here, there is no showing that the income earned by Karbasi was
undeclared in order to benefit from statutory tax exemptions. To clarify, this does not intend to
downplay the requirement of good moral character in naturalization cases. It bears stressing that the
granting of applications for naturalization still necessitates that only those who are deserving may be
admitted as Filipino citizens. The character of the applicant remains to be one of the significant
measures to determine entitlement to Filipino citizenship. Nonetheless, the tenor of the ground used
for the denial of the application in Lim Eng Yu is not akin to what happened in this case.

Clearly, in Lim Eng Yu, the petitioner altogether intended to evade the payment of taxes by abusing
the benefits granted by tax exemptions. In this case, Karbasi did not deny that he gained income
1âwphi 1

through his transactions with Daewoo and Kolin. He even presented, as evidence, the contracts of
service he had entered into with the companies including a Summary of Accounts paid to his repair
shop. He did not disclaim that he had rendered services to these companies and that he had
earned a considerable sum therefrom. Instead, he explained the cause of his lapse and
acknowledged his mistaken belief that his earnings from these transactions need not be declared in
his ITRs as these were withheld already.

Again, it is not the objective of the Court to justify irregularities in ITRs by reason of a "mistaken
belief." The Court, however, finds it difficult to equate Karbasi’s lapse with a moral depravity that is
fatal to his application for Filipino citizenship. This mistaken understanding of the proper way to
declare income is actually so common to individual taxpayers, including lawyers and other
professionals. While this is not to be taken as an excuse for every irregularity in ITRs, the Court is
not prepared to consider this as an outright reflection of one’s immoral inclinations. With due
consideration to his character as established by witnesses, and as observed by the RTC during the
hearings, Karbasi should be deemed to have sufficiently explained his mistake.

In the case of Chua, the Court had even disregarded the OSG’s argument that the applicant’s failure
to execute her ITR "reflects adversely on her conduct." Her explanation of non-filing as an "honest
mistake" was accepted by the Court with due regard to the other circumstances of her case. Like the
CA, the Court also finds the same degree of sincerity in Karbasi’s case, for he was candid enough to
elicit this conclusion. Besides, there was no suggestion in the records that Karbasi habitually
excluded particular income in his ITRs. Echoing the findings in Chua, the Court does not believe that
this one lapse should be regarded as having so blackened Karbasi’s character as to disqualify him
from naturalization as a Philippine citizen.

Third. Considering the above disquisitions, the Court does not need to belabor the last issue on
reciprocity between Iranian and Philippine laws on naturalization. True, the Naturalization Law
disqualifies citizens or subjects of a foreign country whose laws do not grant Filipinos the right to
become naturalized citizens or subjects. A perusal of Karbasi’s petition, both with the RTC and the
CA, together with his supplemental pleadings filed with the Court, however, reveals that he has
successfully established his refugee status upon arrival in the Philippines. In effect, the country’s
obligations under its various international commitments come into operation. Articles 6 and 34 of the
1951 Convention relating to the Status of Refugees, to which the Philippines is a signatory, must be
considered in this case, to wit:

Article 6 of the 1951 Convention:

For the purposes of this Convention, the term "in the same circumstances" implies that any
requirements (including requirements as to length and conditions of sojourn or residence) which the
particular individual would have to fulfill for the enjoyment of the right in question, if he were not a
refugee, must be fulfilled by him, with the exception of requirements which by their nature a refugee
is incapable of fulfilling.

Article 34 of the 1951 Convention:

The Contracting States shall as far as possible facilitate the assimilation and naturalization of
refugees. They shall in particular make every effort to expedite naturalization proceedings and
to reduce as far as possible the charges and costs of such proceedings.

In the same vein, Article 729 of the said Convention expressly provides exemptions from reciprocity,
while Article 34 states the earnest obligation of contracting parties to "as far as possible facilitate the
assimilation and naturalization of refugees." As applied to this case, Karbasi' s status as a refugee
has to end with the attainment of Filipino citizenship, in consonance with Philippine statutory
requirements and international obligations. Indeed, the Naturalization Law must be read in light of
the developments in international human rights law specifically the granting of nationality to refugees
and stateless persons.

WHEREFORE, the petition is DENIED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice
WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION ESTELA M. PERLAS-BERNABE*

Associate Justice Associate Justice

MARVIC M.V.F. LEONEN

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court's Division.

ANTONIO T. CARPIO
Acting Chief Justice

Footnotes

* Designated Acting Member in lieu of Associate Justice Mariano C. Del Castillo, per Special
Order No. 2115, dated July 22, 2015.

1
Article 34 of the 1951 Convention relating to the Status of Refugees.

2
Rollo, pp. 24-37. Penned by Associate Justice Oscar V. Badelles and concurred into by
Associate Justices Edgardo A. Camello and Renato C. Francisco of the Twenty-Second
Division, Court of Appeals, Cagayan de Oro City.

3
Id. at 38-39.

4
RTC Decision, id. at 46-47.

5
Id. at 29-30.

6
Id. at 50.

7
Id. at 36.

8
214 SCRA 748, October 20, 1992.

9
Rollo, p. 20.

10
Id. at 71.
 Fr. Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
11

Commentary, 2009 ed., p. 629.

12
Id. at 629-630.

13
Section 1, Article IV of the 1987 Constitution reads:

Section 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of
this Constitution;

(2) Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and

(4) Those who are naturalized in accordance with law.

Republic Act No. 9139 entitled "An Act Providing for the Acquisition of Philippine
14

Citizenship for Certain Aliens by Administrative Naturalization and for Other purposes".

15
Tochip v. Republic, 121 Phil. 248, 250 (1965).

16
Cuaki Tan Si v. Republic, 116 Phil. 855, 857 (1962).

17
Section 7. Petition for citizenship. – Any person desiring to acquire Philippine citizenship
shall file with the competent court, a petition in triplicate, accompanied by two photographs of
the petitioner, setting forth his name and surname; his present and former places of
residence; his occupation; the place and date of his birth; whether single or married and the
father of children, the name, age, birthplace and residence of the wife and of each of the
children; the approximate date of his or her arrival in the Philippines, the name of the port of
debarkation, and, if he remembers it, the name of the ship on which he came; a declaration
that he has the qualifications required by this Act, specifying the same, and that he is not
disqualified for naturalization under the provisions of this Act; that he has complied with the
requirements of section five of this Act; and that he will reside continuously in the Philippines
from the date of the filing of the petition up to the time of his admission to Philippine
citizenship. The petition must be signed by the applicant in his own handwriting and be
supported by the affidavit of at least two credible persons, stating that they are citizens of the
Philippines and personally know the petitioner to be a resident of the Philippines for the
period of time required by this Act and a person of good repute and morally irreproachable,
and that said petitioner has in their opinion all the qualifications necessary to become a
citizen of the Philippines and is not in any way disqualified under the provisions of this Act.
The petition shall also set forth the names and post-office addresses of such witnesses as
the petitioner may desire to introduce at the hearing of the case. The certificate of arrival,
and the declaration of intention must be made part of the petition.

Republic v. Ong, G.R. No. 175430, June 18, 2012, 673 SCRA 485, 499, citing Tan v.
18

Republic, 121 Phil. 643, 647 (1965) and In the Matter of the Petition of Ban Uan, 154 Phil.
552, 554 (1974).
19
17 Phil. 475 (1966).

20
122 Phil. 943 (1965).

21
No. L-20605, June 30, 1966, 17 SCRA 535.

22
112 Phil. 986 (1961).

23
111 Phil. 489 (1961).

24
No. 20290, August 31, 1965, 14 SCRA 1003.

25
249 Phil. 84 (1988).

26
120 Phil. 973, 975.

27
Supra note 25, at 88-89.

28
124 Phil. 478 (1966).

29
Exemption from reciprocity- 1. Except where this Convention contains more favourable
provisions, a Contracting State shall accord to stateless persons the same treatment as is
accorded to aliens generally

2. After a period of three years residence, all stateless persons shall enjoy exemption
from legislative reciprocity in the territory of the Contracting States.

3. Each Contracting State shall continue to accord to stateless persons the rights and
benefits to which they were already entitled, in the absence of reciprocity, at the date
of entry into force of this Convention for that State.

4. The Contracting States shall consider favourably the possibility of according to

stateless persons, in the absence of reciprocity, rights and benefits beyond those to
which they are entitled according to paragraphs 2 and 3, and to extending exemption
from reciprocity to stateless persons who do not fulfil the conditions provided for in
paragraphs 2 and 3.

5. The provisions of paragraphs 2 and 3 apply both to the rights and benefits referred
to in articles 13, 18, 19, 21 and 22 of this Convention and to rights and benefits for
which this Convention does not provide.
G.R. No. 183110 October 7, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
AZUCENA SAAVEDRA BATUGAS, Respondent.

DECISION

DEL CASTILLO, J.:

"It is universally accepted that a State, in extending the privilege of citizenship to an alien wife of one
of its citizens could have had no other objective than to maintain a unity of allegiance among the
members of the family."1

This Petition for Review on Certiorari2 assails the May 23, 2008 Decision3 of the Court of Appeals
(CA) G.R. CV No. 00523, which affirmed the January 31, 2005 Decision4 of the Regional Trial Court
(RTC), Branch 29, Zamboanga del Sur that granted the Petition for Naturalization5 of respondent
Azucena Saavedra Batuigas (Azucena).

Factual Antecedents

On December 2, 2002, Azucena filed a Petition for Naturalization before the RTC of Zamboanga del
Sur. The case was docketed as Naturalization Case No. 03-001 and raffled to Branch 29 of said
court.

Azucena alleged in her Petition that she believes in the principles underlying the Philippine
Constitution; that she has conducted herself in a proper and irreproachable manner during the
period of her stay in the Philippines, as well as in her relations with the constituted Government and
with the community in which she is living; that she has mingled socially with the Filipinos and has
evinced a sincere desire to learn and embrace their customs, traditions, and ideals; that she has all
the qualifications required under Section 2 and none of the disqualifications enumerated in Section 4
of Commonwealth Act No. 473 (CA473);6 that she is not opposed to organized government nor is
affiliated with any association or group of persons that uphold and teach doctrines opposing all
organized governments; that she is not defending or teaching the necessity or propriety of violence,
personal assault, or assassination for the success and predominance of men’s ideas; that she is
neither a polygamist nor believes in polygamy; that the nation of which she is a subject is not at war
with the Philippines; that she intends in good faith to become a citizen of the Philippines and to
renounce absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state or
sovereignty, and particularly to China; and that she will reside continuously in the Philippines from
the time of the filing of her Petition up to the time of her naturalization.

After all the jurisdictional requirements mandated by Section 97 of CA 473had been complied with,
the Office of the Solicitor General (OSG) filed its Motion to Dismiss8 on the ground that Azucena
failed to allege that she is engaged in a lawful occupation or in some known lucrative trade. Finding
the grounds relied upon by the OSG to be evidentiary in nature, the RTC denied said
Motion.9 Thereafter, the hearing for the reception of Azucena’s evidence was then set on May 18,
2004.10

Neither the OSG nor the Office of the Provincial Prosecutor appeared on the day of the hearing.
Hence, Azucena’s counsel moved that the evidence be presented ex-parte, which the RTC granted.
Accordingly, the RTC designated its Clerk of Court as Commissioner to receive Azucena’s
evidence.11 During the November 5, 2004 ex-parte hearing, no representative from the OSG
appeared despite due notice.12

Born in Malangas, Zamboanga del Sur on September 28, 1941 to Chinese parents,13 Azucena has
never departed the Philippines since birth. She has resided in Malangas, Zamboanga del Sur from
1941-1942; in Margosatubig, Zamboanga del Sur from 1942-1968; in Bogo City for nine months; in
Ipil, Zamboanga del Sur from 1969-1972; in Talisayan, Misamis Oriental from 1972-1976; and, in
Margosatubig, Zamboanga del Sur, thereafter, up to the filing of her Petition.

Azucena can speak English, Tagalog, Visayan, and Chavacano. Her primary, secondary, and
tertiary education were taken in Philippine schools,i.e., Margosatubig Central Elementary School in
1955,14 Margosatubig Academy in1959,15 and the Ateneo de Zamboanga in 1963,16 graduating with a
degree in Bachelor of Science in Education. She then practiced her teaching profession at the Pax
High School for five years, in the Marian Academy in Ipil for two years, and in Talisayan High School
in Misamis Oriental for another two years.17

In 1968, at the age of 26, Azucena married Santiago Batuigas18 (Santiago),a natural-born Filipino
citizen.19 They have five children, namely Cynthia, Brenda, Aileen, Dennis Emmanuel, and Edsel
James.20 All of them studied in Philippine public and private schools and are all professionals, three
of whom are now working abroad.21

After her stint in Talisayan High School, Azucena and her husband, as conjugal partners, engaged in
the retail business of and later on in milling/distributing rice, corn, and copra. As proof of their
income, Azucena submitted their joint annual tax returns and balance sheets from 2000-200222 and
from 2004-2005.23 The business name and the business permits issued to the spouses’ store,
‘Azucena’s General Merchandising,’ are registered in Santiago’s name,24 and he is also the National
Food Authority licensee for their rice and corn business.25 During their marital union, the Batuigas
spouses bought parcels of land in Barrio Lombog, Margosatubig.26

To prove that she has no criminal record, Azucena submitted clearances issued by the Philippine
National Police of Zamboanga del Sur Provincial Office and by the National Bureau of
Investigation.27 She also presented her Health Examination Record28 declaring her as physically and
mentally fit.

To further support Azucena’s Petition, Santiago and witnesses Eufemio Miniao and Irineo Alfaro
testified.

Ruling of the Regional Trial Court

On January 31, 2005, the RTC found that Azucena has amply supported the allegations in her
Petition. Among these are her lack of a derogatory record, her support for an organized government,
that she is in perfect health, that she has mingled with Filipinos since birth and can speak their
language, that she has never had any transgressions and has been a law abiding citizen, that she
has complied with her obligations to the government involving her business operations, and that the
business and real properties she and Santiago own provide sufficient income for her and her family.
Thus, the RTC ruled:

x x x In sum, the petitioner has all the qualifications and none of the disqualifications to be admitted
as citizen of the Philippines in accordance with the provisions of the Naturalization Law.

WHEREFORE, premises considered, the petition is hereby granted.

SO ORDERED.29

In its Omnibus Motion,30 the OSG argued that the ex-parte presentation of evidence before the
Branch Clerk of Court violates Section 10 of CA 473,31 as the law mandates public hearing in
naturalization cases.

Rejecting this argument in its March 21, 2005 Order,32 the RTC held that the public has been fully
apprised of the naturalization proceedings and was free to intervene. The OSG and its delegate, the
Provincial Prosecutor, are the only officers authorized by law to appear on behalf of the State, which
represents the public. Thus, when the OSG was furnished with a copy of the notice of hearing for the
reception of evidence ex-parte, there was already a sufficient compliance with the requirement of a
public hearing.

The OSG then appealed the RTC judgment to the CA,33 contending that Azucena failed to comply
with the income requirement under CA 473. The OSG maintained that Azucena is not allowed under
the Retail Trade Law (Republic Act No. 1180) to engage directly or indirectly in the retail trade.
Hence, she cannot possibly meet the income requirement. And even if she is allowed, her business
is not a "lucrative trade" within the contemplation of the law or that which has an appreciable margin
of income over expenses in order to provide for adequate support in the event of unemployment,
sickness, or disability to work. The OSG likewise disputed Azucena’s claim that she owns real
property because aliens are precluded from owning lands in the country.

The OSG further asserted that the ex-parte proceeding before the commissioner is not a "public
hearing" as ex-parte hearings are usually done in chambers, without the public in attendance. It
claimed that the State was denied its day in court because the RTC, during the May 18, 2004 initial
hearing, immediately allowed the proceeding to be conducted ex-parte without even giving the State
ample opportunity to be present.

Azucena countered that although she is a teacher by profession, she had to quit to help in the retail
business of her husband, and they were able to send all their children to school.34 It is highly unlikely
that she will become a public charge as she and her spouse have enough savings and could even
be given sufficient support by their children. She contended that the definition of "lucrative
trade/income" should not be strictly applied to her. Being the wife and following Filipino tradition, she
should not be treated like male applicants for naturalization who are required to have their own
"lucrative trade."

Azucena denied that the hearing for her Petition was not made public, as the hearing before the
Clerk of Court was conducted in the court’s session hall. Besides, the OSG cannot claim that it was
denied its day in court as notices have always been sent to it. Hence, its failure to attend is not the
fault of the RTC.

Ruling of the Court of Appeals

In dismissing the OSG’s appeal,35 the CA found that Azucena’s financial condition permits her and
her family to live with reasonable comfort in accordance with the prevailing standard of living and
consistent with the demands of human dignity. It said:

Considering the present high cost of living, which cost of living tends to increase rather than
decrease, and the low purchasing power of the Philippine currency, petitioner-appellee, together with
her Filipino husband, nonetheless, was able to send all her children to college, pursue a lucrative
business and maintain a decent existence. The Supreme Court, in recent decisions, adopted a
higher standard in determining whether a petitioner for Philippine citizenship has a lucrative trade or
profession that would qualify him/her for admission to Philippine citizenship and to which petitioner
has successfully convinced this Court of her ability to provide for herself and avoid becoming a
public charge or a financial burden to her community. x x x36

As for the other issue the OSG raised, the CA held that the RTC had complied with the mandate of
the law requiring notice to the OSG and the Provincial Prosecutor of its scheduled hearing for the
Petition.

Thus, the instant Petition wherein the OSG recapitulates the same arguments it raised before the
CA, i.e., the alleged failure of Azucena to meet the income and public hearing requirements of CA
473.

Our Ruling

The Petition lacks merit.

Under existing laws, an alien may acquire Philippine citizenship through either judicial naturalization
under CA 473 or administrative naturalization under Republic Act No. 9139 (the "Administrative
Naturalization Law of 2000"). A third option, called derivative naturalization, which is available to
alien women married to Filipino husbands is found under Section 15 of CA 473, which provides that:

"any woman who is now or may hereafter be married to a citizen of the Philippines and who might
herself be lawfully naturalized shall be deemed a citizen of the Philippines."

Under this provision, foreign women who are married to Philippine citizens may be deemed ipso
facto Philippine citizens and it is neither necessary for them to prove that they possess other
qualifications for naturalization at the time of their marriage nor do they have to submit themselves to
judicial naturalization. Copying from similar laws in the United States which has since been
amended, the Philippine legislature retained Section 15 of CA 473, which then reflects its intent to
confer Filipino citizenship to the alien wife thru derivative naturalization.37

Thus, the Court categorically declared in Moy Ya Lim Yao v. Commissioner of Immigration:38

Accordingly, We now hold, all previous decisions of this Court indicating otherwise notwithstanding,
that under Section 15 of Commonwealth Act 473, an alien woman marrying a Filipino, native born or
naturalized, becomes ipso facto a Filipina provided she is not disqualified to be a citizen of the
Philippines under Section 4 of the same law. Likewise, an alien woman married to an alien who is
subsequently naturalized here follows the Philippine citizenship of her husband the moment he takes
his oath as Filipino citizen, provided that she does not suffer from any of the disqualifications under
said Section 4.39

As stated in Moy Ya Lim Yao, the procedure for an alien wife to formalize the conferment of Filipino
citizenship is as follows:

Regarding the steps that should be taken by an alien woman married to a Filipino citizen in order to
acquire Philippine citizenship, the procedure followed in the Bureau of Immigration is as follows: The
alien woman must file a petition for the cancellation of her alien certificate of registration alleging,
among other things, that she is married to a Filipino citizen and that she is not disqualified from
acquiring her husband’s citizenship pursuant to Section 4 of Commonwealth Act No. 473, as
amended. Upon the filing of said petition, which should be accompanied or supported by the joint
affidavit of the petitioner and her Filipino husband to the effect that the petitioner does not belong to
any of the groups disqualified by the cited section from becoming naturalized Filipino citizen x x x,
the Bureau of Immigration conducts an investigation and thereafter promulgates its order or decision
granting or denying the petition.40

Records however show that in February 1980, Azucena applied before the then Commission on
Immigration and Deportation (CID) for the cancellation of her Alien Certificate of Registration (ACR)
No. 03070541 by reason of her marriage to a Filipino citizen. The CID granted her application.
However, the Ministry of Justice set aside the ruling of the CID as it found no sufficient evidence that
Azucena’s husband is a Filipino citizen42 as only their marriage certificate was presented to establish
his citizenship.

Having been denied of the process in the CID, Azucena was constrained to file a Petition for judicial
naturalization based on CA 473. While this would have been unnecessary if the process at the CID
was granted in her favor, there is nothing that prevents her from seeking acquisition of Philippine
citizenship through regular naturalization proceedings available to all qualified foreign nationals. The
choice of what option to take in order to acquire Philippine citizenship rests with the applicant. In this
case, Azucena has chosen to file a Petition for judicial naturalization under CA 473. The fact that her
application for derivative naturalization under Section 15 of CA 473 was denied should not prevent
her from seeking judicial naturalization under the same law. It is to be remembered that her
application at the CID was denied not because she was found to be disqualified, but because her
husband’s citizenship was not proven. Even if the denial was based on other grounds, it is proper, in
a judicial naturalization proceeding, for the courts to determine whether there are in fact grounds to
deny her of Philippine citizenship based on regular judicial naturalization proceedings.

As the records before this Court show, Santiago’s Filipino citizenship has been adequately proven.
Under judicial proceeding, Santiago submitted his birth certificate indicating therein that he and his
parents are Filipinos. He also submitted voter’s registration, land titles, and business
registrations/licenses, all of which are public records. He has always comported himself as a Filipino
citizen, an operative fact that should have enabled Azucena to avail of Section 15 of CA473. On the
submitted evidence, nothing would show that Azucena suffers from any of the disqualifications under
Section 4 of the same Act.

However, the case before us is a Petition for judicial naturalization and is not based on Section 15 of
CA 473 which was denied by the then Ministry of Justice. The lower court which heard the petition
and received evidence of her qualifications and absence of disqualifications to acquire Philippine
citizenship, has granted the Petition, which was affirmed by the CA. We will not disturb the findings
of the lower court which had the opportunity to hear and scrutinize the evidence presented during
the hearings on the Petition, as well as determine, based on Azucena’s testimony and deportment
during the hearings, that she indeed possesses all the qualifications and none of the disqualifications
for acquisition of Philippine citizenship.

The OSG has filed this instant Petition on the ground that Azucena does not have the qualification
required in no. 4 of Section 2 of CA 473 as she does not have any lucrative income, and that the
proceeding in the lower court was not in the nature of a public hearing. The OSG had the opportunity
to contest the qualifications of Azucena during the initial hearing scheduled on May 18,
2004.However, the OSG or the Office of the Provincial Prosecutor failed to appear in said hearing,
prompting the lower court to order ex parte presentation of evidence before the Clerk of Court on
November 5, 2004. The OSG was also notified of the ex parte proceeding, but despite notice, again
failed to appear. The OSG had raised this same issue at the CA and was denied for the reasons
stated in its Decision. We find no reason to disturb the findings of the CA on this issue. Neither
should this issue further delay the grant of Philippine citizenship to a woman who was born and lived
all her life, in the Philippines, and devoted all her life to the care of her Filipino family. She has more
than demonstrated, under judicial scrutiny, her being a qualified Philippine citizen. On the second
issue, we also affirm the findings of the CA that since the government who has an interest in, and
the only one who can contest, the citizenship of a person, was duly notified through the OSG and the
Provincial Prosecutor’s office, the proceedings have complied with the public hearing requirement
under CA 473.

No. 4, Section 2 of CA 473 provides as qualification to become a Philippine citizen:

4. He must own real estate in the Philippines worth not less than five thousand pesos, Philippine
currency, or must have known lucrative trade, profession, or lawful occupation.

Azucena is a teacher by profession and has actually exercised her profession before she had to quit
her teaching job to assume her family duties and take on her role as joint provider, together with her
husband, in order to support her family. Together, husband and wife were able to raise all their five
children, provided them with education, and have all become professionals and responsible citizens
of this country. Certainly, this is proof enough of both husband and wife’s lucrative trade. Azucena
herself is a professional and can resume teaching at anytime. Her profession never leaves her, and
this is more than sufficient guarantee that she will not be a charge to the only country she has known
since birth.

Moreover, the Court acknowledged that the main objective of extending the citizenship privilege to
an alien wife is to maintain a unity of allegiance among family members, thus:

It is, therefore, not congruent with our cherished traditions of family unity and identity that a husband
should be a citizen and the wife an alien, and that the national treatment of one should be different
from that of the other. Thus, it cannot be that the husband’s interests in property and business
activities reserved by law to citizens should not form part of the conjugal partnership and be denied
to the wife, nor that she herself cannot, through her own efforts but for the benefit of the partnership,
acquire such interests. Only in rare instances should the identity of husband and wife be refused
recognition, and we submit that in respect of our citizenship laws, it should only be in the instances
where the wife suffers from the disqualifications stated in Section 4 of the Revised Naturalization
Law.43

We are not unmindful of precedents to the effect that there is no proceeding authorized by the law or
by the Rules of Court, for the judicial declaration of the citizenship of an individual.44 "Such judicial
declaration of citizenship cannot even be decreed pursuant to an alternative prayer therefor in a
naturalization proceeding."45

This case however is not a Petition for judicial declaration of Philippine citizenship but rather a
Petition for judicial naturalization under CA 473. In the first, the petitioner believes he is a Filipino
citizen and asks a court to declare or confirm his status as a Philippine citizen. In the second, the
petitioner acknowledges he is an alien, and seeks judicial approval to acquire the privilege of be
coming a Philippine citizen based on requirements required under CA 473.Azucena has clearly
proven, under strict judicial scrutiny, that she is qualified for the grant of that privilege, and this Court
will not stand in the way of making her a part of a truly Filipino family.

WHEREFORE, the Petition is DENIED. The May 23, 2008 Decision of the Court of Appeals in CA-
G.R. CV No. 00523 which affirmed the January 31,2005 Decision of the Regional Trial Court, Branch
29, Zamboanga del Sur that granted the Petition for Naturalization, is hereby

AFFIRMED. Subject to compliance with the period and the requirements under Republic Act No.
530which supplements the Revised Naturalization Law, let a Certificate of Naturalization be issued
to AZUCENA SAAVEDRA BATUIGAS after taking an oath of allegiance to the Republic of the
Philippines. Thereafter, her Alien Certificate of Registration should be cancelled.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII or the Constitution and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1 (source text unreadable)

2 (source text unreadable)

3 (source text unreadable)

4 (source text unreadable)

5 (source text unreadable)

6 THE REVISED NATURALIZATION LAW. Approved June 17, 1939.

7 Sec. 9. Notification and appearance. - Immediately upon the filing of a petition, it shall be
the duty of the clerk of court to publish the same at the petitioner’s expense, once a week for
three consecutive weeks, in the Official Gazette, and in one of the newspapers of general
circulation in the province where the petitioner resides, and to have copies of said petition
and a general notice of the hearing posted in a public and conspicuous place in his office or
in the building where said office is located, setting forth in such notice the name, birthplace,
and residence of the petitioner, the date and place of his arrival in the Philippines, the names
of the witnesses whom the petitioner proposes to introduce in support of his petition, and the
date of the hearing of the petition, which hearing shall not be held within ninety days from the
date of the last publication of the notice. The clerk shall, as soon as possible, forward copies
of the petition, the sentence, the naturalization certificate, and other pertinent data to the
Department of the Interior (now Office of the President), the Bureau of Justice (now Solicitor
General), the Provincial Inspector of the Philippine Constabulary of the province (now
Provincial Commander) and the Justice of the Peace of the municipality wherein the
petitioner resides (now the RTC).

8 Records, pp. 24-28.

9 See Order dated November 19, 2003, id. at 33-34.

10 See Order dated March 9, 2004, id. at 39-40.

11 See Order dated May 18, 2004, id. at 43.

12 Id. at 51.

13 Id. at 21.

14Id. at 61. Azucena testified that she has no elementary school records as the school was
already burned down in the 80s.

15 Id. at 101-102.

16 Id. at 103-107.

17 Id. at 70.

18 Id. at 95.

19 Id. at 140-142.

20 Id. at 96-100.

21 Except for Cynthia, who studied elementary in Talisayan Central Elementary School, the
Batuigas children studied in Margosatubig Central Elementary School. The female children
all went to Pax High School in Margosatubig, while Edsel went to San Carlos Boy’s School.
Dennis’s first two years of high school were in Pax High School, while the last two were in
San Carlos Boy’s School. All of them are graduates of University of San Carlos. Cynthia
graduated with a degree in BS Commerce in 1988, Aileen graduated with a degree in BS
Nursing in 1993, while Dennis graduated with a degree in BS Architecture in 1995. As of the
time of the filing of the petition, Cynthia was residing in the Netherlands, Aileen was working
in Texas, USA, while Dennis, who then worked in Singapore, was already working in
Michigan, USA. On the other hand, the remaining children remained in the Philippines,
Brenda obtained her BS Pharmacy degree in 1992and BS Physical Therapy in 1994, and
Edsel got his BS Computer Engineering degree in 1998.

22 Records, pp. 144-159.

23 CA rollo, pp. 35-49.

24 Records, pp. 119-121.

25 Id. at 122-124.

26Id. at 125, 127 and 129. One certificate of title is registered in Santiago’s name, while the
other two lots are separately titled in their sons Edsel and Dennis.

27 Id. at 135 and 137.

28 Id. at 136.

29 Id. at 176.

30 Id. at 177-181.

31 Section 10. Hearing of the petition. — No petition shall be heard within the thirty days
preceding any election. The hearing shall be public, and the Solicitor-General, either himself
or through his delegate or the provincial fiscal concerned, shall appear on behalf of the
Commonwealth of the Philippines at all the proceedings and at the hearing. If, after the
hearing, the court believes, in view of the evidence taken, that the petitioner has all the
qualifications required by, and none of the disqualifications specified in this Act and has
complied with all requisites herein established, it shall order the proper naturalization
certificate to be issued and the registration of the said naturalization certificate in the proper
civil registry as required in section ten of Act Numbered Three thousand seven hundred and
fifty-three.

32 Records, pp. 182-183.

33 CA rollo, pp. 15-22.

34 Id. at 31-33.

35 Supra note 3.

36 Id. at 65.

37 Moy Ya Lim Yao v. Commissioner of Immigration, supra note 1 at 829.

38 Id.

39 Id. at 839.

40 Id. at 855-856. Citations omitted.

41 Records, pp. 138-139.

42 Id. at 133-134.

Moy Ya Lim Yao v. Commissioner of Immigration, supra note 1 at 837-838. Citations

43

omitted.

44 As mentioned in Moy Ya Lim Yao, "x x x what substitute is there for naturalization
proceedings to enable the alien wife of a Philippine citizen to have the matter of her own
citizenship settled and established so that she may not have to be called upon to prove it
everytime she has to perform an act or enter into a transaction or business or exercise a
right reserved only to Filipinos? The ready answer to such question is that as the laws of our
country, both substantive and procedural, stand today, there is no such procedure x x x.’ The
ruling that there is no action for judicial declaration of an individual’s citizenship has been
held in the cases of Tan v. Republic, 107 Phil. 632 (1960), Tan v. Republic, 113 Phil. 391
(1961), and Soria v. Commissioner of Immigration, 147 Phil. 186 (1971).

45 Wong Sau Mei v. Republic, 148 Phil. 26, 31 (1971).

G.R. No. 138496 February 23, 2004

HUBERT TAN CO and ARLENE TAN CO, petitioners,

vs.
THE CIVIL REGISTER OF MANILA and any person having or claiming an interest under the
entry whose cancellation or correction is sought, respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by Hubert Tan Co and Arlene Tan Co
seeking to reverse and set aside the Order1 dated September 23, 1998 of the Regional Trial Court of
Manila, Branch 26, dismissing their petition for correction of entries in the Civil Register. Likewise
sought to be reversed and set aside is the Order dated April 27, 1999 of the court a quo denying the
petitioners’ motion for reconsideration of the said order.

The factual antecedents are as follows:

Hubert Tan Co was born on March 23, 1974. His sister, Arlene Tan Co, was born on May 19, 1975.
In their respective certificates of birth, it is stated that their parents Co Boon Peng and Lourdes
Vihong K. Tan are Chinese citizens.

Thereafter, Co Boon Peng filed an application for his naturalization as a citizen of the Philippines
with the Special Committee on Naturalization under Letter of Instruction (LOI) No. 270. His
application was granted and he was conferred Philippine citizenship under Presidential Decree
(P.D.) No. 1055. The Chairman of the Committee issued on February 15, 1977 Certificate of
Naturalization No. 020778 in his favor. Thus, on February 15, 1977, Co Boon Peng took his oath as
a Philippine citizen. In the meantime, Hubert and Arlene Co finished college and earned their
respective degrees in architecture and accountancy in Philippine schools.

On August 27, 1998, they filed with the Regional Trial Court of Manila a petition under Rule 108 of
the Rules of Court for correction of entries in their certificates of birth. The case was docketed as Sp.
Proc. Case No. 98-90470. They alleged, inter alia, in their petition that:

(3) They were born in the Philippines and the legitimate children of CO BOON PENG;

(4) Co Boon Peng, who is formerly a citizen of China, was conferred Philippine citizenship by
naturalization under Presidential Decree No. 1055 and had taken his oath of allegiance to
the Republic of the Philippines on 15th February, 1977 in the City of Manila;

(5) At the time of birth of [the] petitioners, their father CO BOON PENG was still a Chinese
citizen that is why entry in their respective birth certificates as to their father’s citizenship was
Chinese;

(6) Upon granting of Philippine citizenship by naturalization to Co Boon Peng in 1977, [the]
petitioners who were born in the Philippines and still minors at that time became Filipino
citizens through the derivative mode of naturalization. Our Naturalization Law, specifically
Section 15 of Commonwealth Act No. 473, as amended by Commonwealth Act No. 535
which provides:
 "Minor children of persons naturalized under this law who have been born in the Philippines
shall be considered citizens thereof;"

(7) The naturalization of petitioners’ father in 1977 was an act or event affecting and
concerning their civil status that must be recorded in the Civil Register, Article 407 of the
New Civil Code of the Philippines which provides:

"Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the Civil
Register."2

The petitioners prayed that, after due proceedings, the trial court render judgment correcting and
changing the entries in their respective birth certificates as to the citizenship of their father Co Boon
Peng, from "Chinese" to "Filipino."3

On September 23, 1998, the court a quo issued an order dismissing the petition outright on the
ground that the petition was insufficient, solely because the petitioners’ father Co Boon Peng applied
for naturalization under LOI No. 270 and was conferred Philippine citizenship by naturalization under
PD No. 1055 and not under Commonwealth Act (CA) No. 473. 4

The petitioners sought the reconsideration of the assailed order arguing that LOI No. 270 and CA
No. 473 were designed to grant citizenship to deserving aliens; hence, should be construed
together. They averred that the benefit of Section 15 of CA No. 473 should also be granted to the
petitioners whose father was granted naturalization under LOI No. 270. However, the RTC issued an
Order on April 27, 1999, denying their motion for reconsideration for the following reasons: (a)
although Commonwealth Act No. 473 and Letter of Instructions No. 270 are statutes relating to the
same subject matter, they do not provide the same beneficial effects with respect to the minor
children of the applicant. Section 15 of CA No. 473 expressly provides for the effect of the
naturalization on the wife and children of the applicant while LOI No. 270 does not have any proviso
to that effect; (b) LOI No. 270 clearly refers to qualified individuals only. The rules and regulations
promulgated by the Committee established pursuant to LOI No. 270 and the amendments issued by
then President Ferdinand E. Marcos (LOI Nos. 292 and 491) clearly speak of qualified individuals
only; no proviso therein referred to its effect on the wife and children of the individual; (c) Section 15
of CA No. 473 should not be deemed and incorporated in and applied to LOI No. 270; and, (d) the
application of the so-called "pari materia" rule of construction made by the petitioners is misplaced,
as what should be applied in the instant case is the rule on strict construction of legislative grants or
franchise. The court a quo stressed that legislative grants, whether they be of property, rights or
privileges, whether granted to corporations or individuals, must be strictly construed against the
grantee and in favor of the grantor.

Aggrieved, the petitioners now come to this Court assailing the court a quo’s Order dismissing their
petition outright and its Order denying their motion for the reconsideration of the same.

The petitioners contend that the trial court erred in holding that their petition was insufficient. They
assert that contrary to the ruling of the trial court, they are qualified to claim the benefit of Section 15
of CA No. 473, which provides that minor children of persons naturalized thereunder who were born
in the Philippines shall likewise be considered citizens thereof. They contend that although LOI No.
270, under which the petitioners’ father was naturalized does not contain a provision similar to
Section 15 of CA No. 473, the latter provision should be deemed incorporated therein. They point
out that both laws have the same purpose and objective, i.e., to grant Philippine citizenship to
qualified aliens permanently residing in the Philippines. The petitioners invoke the rule that statutes
in pari materia are to be read together.5 They posit that CA No. 473 and LOI No. 270 should be
harmonized and reconciled since "all statutes relating to the same subject, or having the same
general purpose, should be read in connection with it, and should be construed together as they
constitute one law."6

The petitioners maintain that the letter and spirit of LOI No. 270 was to grant the privilege of
Philippine citizenship not only to qualified aliens but also to their minor children who were born in the
country. They assert that this is apparent from paragraph 4-A thereof, which extends the option to
adopt Filipino names not only to qualified applicants for naturalization but also to their wives and
minor children. They submit that when then President Ferdinand E. Marcos enacted LOI No. 270, he
must be presumed to have been acquainted with the provisions of CA No. 473 and did not intend to
abrogate and discontinue the beneficial effects of Section 15 thereof; otherwise, Pres. Marcos would
have expressly repealed Section 15 of CA No. 473 in relation to LOI No. 270. Thus, according to the
petitioners, the naturalization of their father during their minority is an act or event affecting their civil
status that must be recorded in the Civil Register pursuant to Article 407 of the Civil Code.

In his Comment, the Solicitor General contends that the court a quo did not err in issuing the
assailed orders. Contrary to the petitioners’ theory, LOI No. 270 and CA No. 473 are separate and
distinct laws; therefore, are not in pari materia. He points out that although LOI No. 270 and CA No.
473 both govern the naturalization of aliens, CA No. 473 deals with the requirements and procedure
for naturalization by judicial decree; LOI No. 270, on the other hand, deals with the requirements and
procedure for naturalization by presidential decree.

The Solicitor General further asserts that the petitioners’ contention that the naturalization of their
father is an event affecting and concerning their civil status envisaged in Article 407 of the Civil Code
has no legal basis. The correction sought and allowed under Rule 108 of the Rules of Court must be
one that reflects a fact existing before or at the time of birth. In the petitioners’ case, the
naturalization of their father in 1977 took place long after they were born. Moreover, according to the
Solicitor General, under LOI No. 270 and its amendatory laws, the naturalization of a father did not
ipso facto render his children also naturalized. The petitioners thus cannot invoke Article 407 of the
Civil Code and Rule 108 of the Rules of Court to avoid strict compliance with the naturalization laws.

The petition is meritorious.

The rule on statutory construction provides that:

Statutes in pari materia should be read and construed together because enactments of the same
legislature on the same subject are supposed to form part of one uniform system; later statutes are
supplementary or complimentary (sic) to the earlier enactments and in the passage of its acts the
legislature is supposed to have in mind the existing legislations on the subject and to have enacted
its new act with reference thereto.7

Statutes in pari materia should be construed together to attain the purpose of an expressed national
policy, thus:

On the presumption that whenever the legislature enacts a provision it has in mind the previous
statutes relating to the same subject matter, it is held that in the absence of any express repeal or
amendment therein, the new provision was enacted in accord with the legislative policy embodied in
those prior statutes, and they all should be construed together. Provisions in an act which are
omitted in another act relating to the same subject matter will be applied in a proceeding under the
other act, when not inconsistent with its purpose. Prior statutes relating to the same subject matter
are to be compared with the new provisions; and if possible by reasonable construction, both are to
be construed that effect is given to every provision of each. Statutes in pari materia, although in
apparent conflict, are so far as reasonably possible construed to be in harmony with each other.8
LOI No. 270 and CA No. 473 are laws governing the naturalization of qualified aliens residing in the
Philippines. While they provide for different procedures, CA No. 473 governs naturalization by
judicial decree while LOI No. 270 governs naturalization by presidential decree; both statutes have
the same purpose and objective: to enable aliens permanently residing in the Philippines, who,
having demonstrated and developed love for and loyalty to the Philippines, as well as affinity to the
culture, tradition and ideals of the Filipino people, and contributed to the economic, social and
cultural development of our country, to be integrated into the national fabric by being granted Filipino
citizenship. Under the LOI, the procedure for the acquisition of citizenship by naturalization is more
expeditious, less cumbersome and less expensive. The sooner qualified aliens are naturalized, the
faster they are able to integrate themselves into the national fabric, and are thus able to contribute to
the cultural, social and political well- being of the country and its people.

Clearly, LOI No. 270 and CA No. 473 are, as the petitioners correctly posit, statutes in pari materia.
Absent any express repeal of Section 15 of CA No. 473 in LOI No. 270, the said provision should be
read into the latter law as an integral part thereof, not being inconsistent with its purpose. Thus,
Section 15 of CA No. 473,9 which extends the grant of Philippine citizenship to the minor children of
those naturalized thereunder, should be similarly applied to the minor children of those naturalized
under LOI No. 270, like the petitioners in this case.

It is not enough that the petitioners adduce in evidence the certificate of naturalization of their father,
Co Boon Peng, and of his oath of allegiance to the Republic of the Philippines, to entitle them to
Philippine citizenship. They are likewise mandated to prove the following material allegations in their
petition: (a) that they are the legitimate children of Co Boon Peng; (b) that they were born in the
Philippines; and, (c) that they were still minors when Co Boon Peng was naturalized as a Filipino
citizen;

The petitioners’ recourse to Rule 108 of the Rules of Court, as amended, is appropriate. Under
Article 412 of the New Civil Code, no entry in a civil register shall be changed or corrected without a
judicial order. The law does not provide for a specific procedure of law to be followed. But the Court
approved Rule 108 of the Rules of Court to provide for a procedure to implement the law.10 The
entries envisaged in Article 412 of the New Civil Code are those provided in Articles 407 and 408 of
the New Civil Code which reads:

Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in
the civil register.

Art. 408. The following shall be entered in the civil register:

(1) Births; (2) Marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments
of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of
name.

Specific matters covered by the said provision include not only status but also nationality.11 The acts,
events or factual errors envisaged in Article 407 of the New Civil Code include even those that occur
after the birth of the petitioner. However, in such cases, the entries in the certificates of birth will not
be corrected or changed. The decision of the court granting the petition shall be annotated in the
certificates of birth and shall form part of the civil register in the Office of the Local Civil Registrar.12

To correct simply means "to make or set aright; to remove the faults or error from." To change
means "to replace something with something else of the same kind or with something that serves as
a substitute. Article 412 of the New Civil Code does not qualify as to the kind of entry to be changed
or corrected or distinguished on the basis of the effect that the correction or change may be.13 Such
entries include not only those clerical in nature but also substantial errors. After all, the role of the
Court under Rule 108 of the Rules of Court is to ascertain the truths about the facts recorded
therein.14

The proceedings in Rule 108 of the Rules of Court are summary if the entries in the civil register
sought to be corrected are clerical or innocuous in nature. However, where such entries sought to be
corrected or changed are substantial: i.e., the status and nationality of the petitioners or the
citizenship of their parents,15 the proceedings are adversarial in nature as defined by this Court
in Republic v. Valencia, thus:

One having opposing parties; contested, as distinguished from an ex parte application, one of which
the party seeking relief has given legal warning to the other party, and afforded the latter an
opportunity to contest it. Excludes an adoption proceeding.16

In such a proceeding, the parties to be impleaded as respective defendants are (a) the local civil
registrar; and, (b) all persons who have claims any interest which would be affected thereby.17

In this case, the petitioners alleged in their petition that they are the legitimate children of Co Boon
Peng, who was naturalized as a Filipino citizen, but that their certificates of birth still indicate that he
is a Chinese national. In view of their father’s naturalization, they pray that the entries in their
certificates of birth relating to the citizenship of their father be changed from "Chinese" to "Filipino."

The petitioners’ recourse to the procedure in Rule 108 of the Rules of Court, as amended, being
appropriate, it behooved the trial court to do its duty under Section 4, Rule 108 of the Rules of Court,
namely:

Sec. 4. Notice and Publication. – Upon the filing of the petition, the court shall, by an order, fix the
time and place for the hearing of the same, and cause reasonable notice thereof to be given to the
person named in the petition. The court shall also cause the order to be published once a week for
three (3) consecutive weeks in a newspaper of general circulation in the province.

After hearing, the court shall issue an order either dismissing the petition or issue an order granting
the same. In either case, a certified copy of the judgment shall be served upon the civil registrar
concerned who shall annotate the same in the certificates of birth of the petitioners. The judgment of
the court shall form part of the records of the local civil register.18

In this case, the trial court dismissed the petition outright in violation of Rule 108 of the Rules of
Court. Patently, then, the trial court erred in so doing.

IN THE LIGHT OF THE FOREGOING, the petition is GRANTED. The assailed Orders of the
Regional Trial Court of Manila, Branch 26, are SET ASIDE and REVERSED. The trial court is
DIRECTED to reinstate the petition in Special Proceedings NO. 98-90470 in the court docket, and
ORDERED to continue with the proceedings in the said case under Rule 108 of the Rules of Court,
as amended.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,

Carpio, Austria-Martinez, Corona, Carpio- Morales, Azcuna, and Tinga, JJ., concur.
Footnotes

1 Penned by Judge Guillermo L. Loja, Sr.

2 Records, pp. 2-3.

3 Rollo, p. 5.

4 Id. at 46-47.

5 Pasno v. Ravina, 54 Phil. 378 (1930).

6 Rollo, p. 10.

7 Agpalo, R., Statutory Construction, p. 212 (1995).

8C & C Commercial Corporation v. National Waterworks and Sewerage Authority, 21 SCRA

984 (1967).

9 The provision reads in full:

Sec. 15. Effect of the naturalization on wife and children. – Any woman who is now or
may hereafter be married to a citizen of the Philippines, and who might herself be
lawfully naturalized shall be deemed a citizen of the Philippines.

Minor children of persons naturalized under this law shall be considered citizens
thereof.

A foreign-born minor child, if dwelling in the Philippines at the time of the

naturalization of the parent, shall automatically become a Philippine citizen, and a
foreign-born minor child, who is not in the Philippines at the time the parent is
naturalized, shall be deemed a Philippine citizen only during his minority, unless he
begins to reside in the Philippines when still minor, in which case, he will continue to
be a Philippine citizen even after becoming of age.

A child born outside the Philippines after naturalization of his parent, shall be
considered a Philippine citizen, unless one year after reaching the age of majority, he
fails to register himself as a Philippine citizen at the Philippine Consulate of the
country where he resides, and to take the necessary oath of allegiance.

10Lee v. Court of Appeals, 367 SCRA 110 (2001); Republic v. Valencia, 141 SCRA 462
(1986).

11 Ibid.

12 Section 7, Rule 108, Rules of Court, as amended.

13 Lee v. Court of Appeals, supra.

14 Republic v. Valencia, supra.

15Bagongbayan v. Republic, 16 SCRA 403 (1966) citing Arnaldo v. Republic, G.R. No.
10226, February 14, 1958.

16 Supra, p. 469.

17 Id.

18 Section 7, Rule 108, Rules of court, as amended.

G.R. No. 202809 July 2, 2014

DENNIS L. GO, Petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, assailing the January 18, 2012 Decision1 and the July 23, 2012 Resolution2 of the Court
of Appeals (CA), in CA-G.R. CV No. 95120, which reversed and set aside the November 18, 2008
Decision of the Regional Trial Court, Branch 45, Manila (RTCJ, by dismissing, without prejudice, the
petition for naturalization filed by Dennis L. Go (petitioner).

The Facts

On October 13, 2004, petitioner filed a petition for naturalization under Commonwealth Act (C.A.)No.
473, the Revised Naturalization Law,3 with the RTC, where it was docketed as Naturalization Case
No. 03-107591.

Petitioner made the following allegations in his petition: 1] that he was born on May 7, 1982 in Manila
to spouses Felix and Emma Go, both Chinese nationals; 2] that he was of legal age, Chinese
national, single, with residence address at No. 1308-1310 Oroquieta Street, Sta. Cruz, Manila,
where he had been residing since birth; 3] that he spoke English and Tagalog and has spent his
elementary, secondary and tertiary education in Philippine schools where subjects on Philippine
history, government and civics were taught as part of the school curriculum; 4] that he believed in
the principles underlying the Philippine Constitution, was of good moral character and had
conducted himself in a proper and irreproachable manner during the entire period of his residence in
the Philippines in his relations with the constituted government as well as with the community; 5] that
he is not opposed to organized government or is affiliated with any association or group of persons
that uphold and teach doctrines opposing all organized governments; 6] that he did not defend or
teach the necessity or propriety of violence, personal assault, or assassination for the success and
predominance of men’s ideas; 7] that he was neither a polygamist nor a believer in polygamy; 8] that
he had never been convicted of any crime involving moral turpitude and was not suffering from
mental alienation or incurable contagious diseases; 9] that he was not a citizen or subject of a nation
at war with the Philippines; 10] that it was his intention in good faith to become a citizen of the
Philippines and to renounce absolutely and forever all allegiance and fidelity to any foreign state or
sovereignty, particularly to China of which he was a citizen; 11] that he would reside continuously in
the Philippines from the date of the filing of the petition up to the time of his admission to Philippine
citizenship; and 12] that he was exempt from the filing of the Declaration of Intention with the Office
of the Solicitor General (OSG)under C.A. No. 473, Section 5, as he was born in the Philippines and
received his primary, secondary and tertiary education in the country.

On September 11, 2003, the RTC set the initial hearing of his petition on August 17, 2004. In
compliance with the jurisdictional requirements under Section 9 of C.A. No. 473,4 the notice was
published in the Official Gazette and in a newspaper of general circulation in the Philippines, once a
week for three (3) consecutive weeks, and was posted in a conspicuous place at the Office of the
Clerk of Court.
During the hearings, petitioner testified to prove his compliance with all the requirements for
naturalization and presented, as witnesses, Dr. Joseph Anlacan (Dr. Anlacan), Dr. Edward C.
Tordesillas (Dr. Tordesillas), Silvino J. Ong (Ong), Teresita M. Go (Teresita),and Juan C. Go (Juan).
Dr. Anlacan testified that based on the psychiatric examination he conducted on petitioner, he had
no psychiatric abnormality at the time of the test.5

Dr. Tordesillas, on the other hand, reported that petitioner’s medical examination results were
normal. Ong, a friend of petitioner’s family, stated that being their neighbor in Sto. Cristo Street, he
had known petitioner since childhood through his association with the family in times of celebration.
Teresita claimed that she had personally known petitioner since birth because he was the son of her
brother-in-law. She described him as a peace-loving person who participated in activities sponsored
by his school and the barangay. Lastly, Juan, a businessman by profession, also claimed that he
knew petitioner personally and that he had executed an Affidavit of Support in his favor.

After petitioner presented his evidence and formally offered the same,6 the Republic, through the
OSG, posed no objection as to the relevancy and competence of his documentary evidence. The
OSG further manifested that it had no evidence to present and requested that the case be submitted
for decision based on petitioner’s evidence.7 The OSG, however, later moved for the reopening of
trial for the admission of its documentary evidence.8 It informed the RTC that it had received a report,
dated November 23,2006, issued by the National Bureau of Investigation (NBI),9tending to prove
petitioner’s non-compliance with the requirements of the law on naturalization.

On April 3, 2007, petitioner manifested to the RTC that he had a clearance issued by the NBI as
proof of his lack of criminal record, and that he was not the same Dennis Go who was the subject of
the NBI Investigation Report being offered in evidence by the OSG.

After the conduct of a clarificatory hearing, the RTC issued its October 24, 2008 Order10 admitting the
evidence adduced by both parties, but denying the motion of the OSG to re-open trial.

On November 18, 2008, the RTC rendered a decision granting the petition for naturalization ruling
that the petitioner possessed the qualifications set forth by law. Among these were petitioner’s lack
of a derogatory record, his support for an organized government, his being in perfect health, his
mingling with Filipinos since birth and his ability to speak their language, and his being a law abiding
citizen. The RTC likewise found that petitioner presented convincing evidence that he was not
disqualified for naturalization as provided for under Section 4 of C.A. No. 473.11The dispositive
portion of the RTC decision reads:

WHEREFORE, premises considered, the Petition of DENNIS L. GO for Naturalization as a Filipino

Citizen is hereby GRANTED. Upon finality of this Decision, before a Certificate of Naturalization may
be issued to him pursuant to the provisions of Republic Act 530, Petitioner must take his oath of
allegiance and fidelity to the Republic of the Philippines.

SO ORDERED.12

Not in conformity, the OSG moved for reconsideration and the reopening of trial for the second time.
This time, it sought to be admitted, as evidence, a background investigation report13 issued by the
Bureau of Immigration (BOI) stating the following reasons to oppose the petition, among others: that
petitioner’s parents remained as Chinese citizens up to the present; that petitioner’s aunt arrogantly
refused to allow them to engage in an interview while at their residence; and that the retail business
of petitioner’s family must be subjected to an investigation for unexplained wealth and tax
deficiencies.
On May 18, 2009, after an exchange of pleadings by the parties, the RTC denied the OSG’s motion
for reconsideration for lack of merit.

On appeal to the CA, the OSG raised the following arguments:

1) Evidence proving that petitioner did not possess the qualifications or was disqualified from
acquiring Philippine citizenship may be received anytime prior to the finality of judgment
granting the application for naturalization;

2) Petitioner failed to prove that he had all the qualifications entitling him to the grant of
Philippine citizenship;

3) Petitioner failed to prove that his witnesses were credible;

4) Petitioner’s character witnesses failed to prove that he had all the qualifications and none
of the disqualifications for the grant of Philippine citizenship; and

5) Failure to state all former places of residence was fatal to petitioner’s application for
naturalization.

Petitioner countered that the RTC correctly denied the OSG’s motion for reconsideration as it was
given several opportunities to present its evidence and oppose the petition, but did not. The OSG
may not file a motion for the purpose of re-opening the case on a piece-meal basis on the pretext
that the government could, at all stages of the proceedings, raise the issue of non-compliance with
naturalization laws. In any case, the background investigation by the BOI yielded no reasonable
ground to deny the petition for naturalization because the citizenship of his parents had nothing to do
with it. The RTC decision contained an exhaustive discussion showing that he possessed all the
qualifications and none of the disqualifications provided for by law.

In its assailed decision, the CA reversed and set aside the RTC decision and dismissed, without
prejudice, the petition for naturalization. According to the CA, while there was sufficient evidence
from which petitioner’s ability to write English or any of the principal Philippine languages, may be
inferred, he failed to adduce evidence to prove that his witnesses were credible. He was not able to
prove that the persons he presented in court had good standing in the community, known to be
honest and upright, reputed to be trustworthy and reliable, and that their word could be taken at face
value, as a good warranty of his worthiness.

Hence, this petition.

Petitioner insists that the findings of facts by the RTC are fully supported by the evidence extant in
the records of the case, rendering its reversal by the CA, as unwarranted and erroneous. The RTC
was in a better position to examine the real evidence and observe the demeanor of the witnesses
presented.

Citizenship is personal and more or less permanent membership in a political community. It denotes
possession within that particular political community of full civil and political rights subject to special
disqualifications. Reciprocally, it imposes the duty of allegiance to the political community.14 The core
of citizenship is the capacity to enjoy political rights, that is, the right to participate in government
principally through the right to vote, the right to hold public office and the right to petition the
government for redress of grievance.15
No less than the 1987 Constitution enumerates who are Filipino citizens.16 Among those listed are
citizens by naturalization, which refers to the legal act of adopting an alien and clothing him with the
privilege of a native-born citizen. Under the present laws, the process of naturalization can be
judicial or administrative. Judicially, C.A. No. 473 provides that after hearing the petition for
citizenship and receipt of evidence showing that the petitioner has all the qualifications and none of
the disqualifications required by law, the competent court may order the issuance of the proper
naturalization certificate and the registration thereof in the proper civil registry. On the other hand,
Republic Act (R.A.)No. 9139 provides that aliens born and residing in the Philippines may be granted
Philippine citizenship by administrative proceeding by filing a petition for citizenship with the Special
Committee, which, in view of the facts before it, may approve the petition and issue a certificate of
naturalization.17 In both cases, the petitioner shall take an oath of allegiance to the Philippines as a
sovereign nation.

It is a well-entrenched rule that Philippine citizenship should not easily be given away. All those
seeking to acquire it must prove, to the satisfaction of the Court, that they have complied with all the
requirements of the law.18 The reason for this requirement is simple. Citizenship involves political
status; hence, every person must be proud of his citizenship and should cherish it. Verily, a
naturalization case is not an ordinary judicial contest, to be decided in favor of the party whose claim
is supported by the preponderance of the evidence. Naturalization is not a right, but one of privilege
of the most discriminating, as well as delicate and exacting nature, affecting, as it does, public
interest of the highest order, and which may be enjoyed only under the precise conditions prescribed
by law therefor.19

Jurisprudence dictates that in judicial naturalization, the application must show substantial and
formal compliance with C.A. No. 473. In other words, an applicant must comply with the jurisdictional
requirements, establish his or her possession of the qualifications and none of the disqualifications
enumerated under the law, and present at least two (2) character witnesses to support his
allegations.20 In Ong v. Republic of the Philippines,21 the Court listed the requirements for character
witnesses, namely:

1. That they are citizens of the Philippines;

2. That they are "credible persons";

3. That they personally know the petitioner;

4. That they personally know him to be a resident of the Philippines for the period of time
required by law;

5. That they personally know him to be a person of good repute;

6. That they personally know him to be morally irreproachable;

7. That he has, in their opinion, all the qualifications necessary to become a citizen of the
Philippines; and

8. That he "is not in any way disqualified under the provisions" of the Naturalization Law.

In vouching for the good moral character of the applicant for citizenship, a witness, for purposes of
naturalization, must be a "credible" person as he becomes an insurer of the character of the
candidate.22 The Court, in Ong, explained:
a "credible" person is, to our mind, not only an individual who has not been previously convicted ofa
crime; who is not a police character and has no police record; who has not perjured in the past; or
whose "affidavit" or testimony is not incredible. What must be "credible" is not the declaration made,
but the person making it. This implies that such person must have a good standing in the
community; that he is known to be honest and upright; that he is reputed to be trustworthy and
reliable; and that his word may be taken on its face value, as a good warranty of the worthiness of
the petitioner.

In consonance with the above dictum, in Lim Ching Tian v. Republic,23 the Court explained that the
"law requires that a vouching witness should have actually known an applicant for whom he testified
for the requisite period prescribed therein to give him the necessary competence to act as such. The
reason behind this requirement is that a vouching witness is in a way an insurer of the character of
petitioner because on his testimony the court is of necessity compelled to rely in deciding the merits
of his petition. It is, therefore, imperative that he be competent and reliable. And he is only
competent to testify on his conduct, character and moral fitness if he has had the opportunity to
observe him personally, if not intimately, during the period he has allegedly known him." The law, in
effect, requires that the character witnesses be not mere ordinary acquaintances of the applicant,
but possessed of such intimate knowledge of the latter as to be competent to testify of their personal
knowledge; and that they have each one of the requisite qualifications and none of the statutory
disqualifications.

In this case, the OSG mainly harps on the petitioner’s failure to prove that his witnesses are credible.

The Court agrees.

The records of the case show that the joint affidavits executed by petitioner’s witnesses did not
establish their own qualification to stand as such in a naturalization proceeding. In turn, petitioner did
not present evidence proving that the persons he presented were credible. In the words of the CA,
"he did not prove that his witnesses had good standing in the community, known to be honest and
upright, reputed to be trustworthy and reliable, and that their word may be taken at face value, as a
good warranty of the worthiness of petitioner."24

While there is no showing that petitioner’s witnesses were of doubtful moral inclinations, there was
likewise no indication that they were persons whose qualifications were at par with the requirements
of the law on naturalization. Simply put, no evidence was ever proffered to prove the witnesses’
good standing in the community, honesty, moral uprightness, and most importantly, reliability. As a
consequence, their statements about the petitioner do not possess the measure of "credibility"
demanded of in naturalization cases. This lack of "credibility" on the part of the witnesses,
unfortunately, weakens or renders futile petitioner’s claim of worthiness. An applicant for Philippine
citizenship would carefully testify as to his qualifications, placing emphasis on his good traits and
character. This is expected of a person who longs to gain benefits and advantages that Philippine
citizenship bestows. Therefore, a serious assessment of an applicant’s witnesses, both as to the
credibility of their person and their very testimony, is an essential facet of naturalization proceedings
that may not be brushed aside.

Further, petitioner’s witnesses only averred general statements without specifying acts or events that
would exhibit petitioner’s traits worthy of the grant of Philippine citizenship. For instance, a statement
in their affidavits as to petitioner’s adherence to the principles underlying the Philippine Constitution
is not evidence, per se, of petitioner’s agreement and zeal to Philippine ideals. These appear to be
empty declarations if not coming from credible witnesses.
It bears stressing that the CA was correct in finding that the testimonies of petitioner’s witnesses only
proved that he mingled socially with Filipinos. While almost all of the witnesses testified that they
knew petitioner since birth and that they had interacted with petitioner’s family in times of
celebration, this did not satisfy the other requirements set by law, that is, a genuine desire to learn
and embrace the Filipino ideals and traditions. Besides, both the NBI and BOI reports cast doubt on
petitioner’s alleged social interaction with Filipinos. The background checks done on petitioner
yielded negative results due to the uncooperative behavior of the members of his household. In fact,
petitioner himself disobliged when asked for an interview by BOI agents.

To the Court, this is a display of insincerity to embrace Filipino customs, traditions and ideals. This
1âw phi 1

leads to the inescapable conclusion that petitioner failed to prove that he has all the qualifications
entitling him to the grant of Philippine citizenship. Filipino citizenship is predicated upon oneness
with the Filipino people. It is indispensable that an applicant for naturalization shows his identification
with the Philippines as a country deserving of his wholehearted allegiance. Until there is a positive
and unequivocal showing that this is so in the case of petitioner, the Court must selfishly decline to
confer Philippine citizenship on one who remains an alien in principles and sentiment.

Finally, it is noteworthy that the OSG was correct in arguing that petitioner's failure to state his
former residence in the petition was fatal to his application for naturalization. Indeed, this omission
had deprived the trial court of jurisdiction to hear and decide the case. Differently stated, the
inclusion of present and former places of residence in the petition is a jurisdictional requirement,
without which the petition suffers from a fatal and congenital defect which cannot be cured by
evidence on the omitted matter at the trial.25

Here, a character witness had unwittingly revealed that he and petitioner were neighbors in Sto.
Cristo Street before the latter's family transferred to their declared residential address in Oroquieta
Street. This proves that petitioner's former residence was excluded in his allegations contained in the
published petition. In effect, there was an unpardonable lapse committed in the course of petitioner's
compliance to the jurisdictional requirements set be law, rendering the trial court's decision, not only
as erroneous, but void.

WHEREFORE, the pet1t1on is DENIED. The January 18, 2012 Decision and the July 23, 2012
Resolution of the Court of Appeals in CA G.R. CV No. 95120 are AFFIRMED. As stated in the
decision of the Court of Appeals, the dismissal is without prejudice.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

DIOSDADO M. PERALTA MARTIN S. VILLARAMA, JR.*

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice
 ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, l
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* Designated Acting Member in view of the vacancy in the Third Division, per Special Order
No. 1691, dated May 22, 2014.

1
Rollo, pp. 29-42, penned by Associate Justice Mariflor P. Punzalan Castillo. with Associate
Justices Andres B. Reyes. Jr. and Franchito N. Diamante. concurring.

2
Id. at 43-44.

3
"An Act to Provide for the Acquisition of Philippine Citizenship by Naturalization, and to
Repeal Acts Numbered Twenty-Nine Hundred and Twenty-Seven and Thirty-Four Hundred
and Forty-Eight".

4
Sec. 9. Notification and appearance. - Immediately upon the filing of a petition, it shall be
the duty of the clerk of court to publish the same at the petitioner’s expense, once a week for
three consecutive weeks, in the Official Gazette, and in one of the newspapers of general
circulation in the province where the petitioner resides, and to have copies of said petition
and a general notice of the hearing posted in a public and conspicuous place in his office or
in the building where said office is located, setting forth in such notice the name, birthplace,
and residence of the petitioner, the date and place of his arrival in the Philippines, the names
of the witnesses whom the petitioner proposes to introduce in support of his petition, and the
date of the hearing of the petition, which hearing shall not be held within ninety days from the
date of the last publication of the notice. The clerk shall, as soon as possible, forward copies
of the petition, the sentence, the naturalization certificate, and other pertinent data to the
Department of the Interior (now Office of the President), the Bureau of Justice (now Solicitor
General), the Provincial Inspector of the Philippine Constabulary of the province (now
Provincial Commander) and the Justice of the Peace of the municipality wherein the
petitioner resides (now the RTC).
5
Rollo, p. 86.

6
Id. at 120-122.

7
Id. at 123-126.

8
Id. at 127-130.

9
Id. at 131-132.

10
Id. at 142-143.

11
Section 4. Who are disqualified.- The following cannot be naturalized as Philippine citizens:

a. Persons opposed to organized government or affiliated with any association or

group of persons who uphold and teach doctrines opposing all organized
governments;

b. Persons defending or teaching the necessity or propriety of violence, personal

assault, or assassination for the success and predominance of their ideas;

c. Polygamists or believers in the practice of polygamy;

d. Persons convicted of crimes involving moral turpitude;

e. Persons suffering from mental alienation or incurable contagious diseases;

f. Persons who, during the period of their residence in the Philippines, have not
mingled socially with the Filipinos, or who have not evinced a sincere desire to learn
and embrace the customs, traditions, and ideals of the Filipinos;

g. Citizens or subjects of nations with whom the United States and the Philippines
are at war, during the period of such war;

h. Citizens or subjects of a foreign country other than the United States3 whose laws
do not grant Filipinos the right to become naturalized citizens or subjects thereof.

12
Rollo, pp. 151-152.

13
Id. at 158, dated March 29, 2005.

Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, 2009
14

Edition, p. 629.

Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, 2009
15

Edition pp. 629-630.

16
Article IV Section 1. The following are citizens of the Philippines:
 (1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution;

(2) Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and

(4) Those who are naturalized in accordance with law.

Republic Act No. 9139 entitled "An Act Providing for the Acquisition of Philippine
17

Citizenship for Certain Aliens by Administrative Naturalization and for Other purposes".

18
Felipe Tochip v. Republic, G.R. No. L-19637, October 26, 1965.

19
Cuaki Tan Si v. Republic, G.R. No. L-18006, October 31, 1962, 6 SCRA 545, 546 (1962).

20
Section 7. Petition for citizenship. – Any person desiring to acquire Philippine citizenship
shall file with the competent court, a petition in triplicate, accompanied by two photographs of
the petitioner, setting forth his name and surname; his present and former places of
residence; his occupation; the place and date of his birth; whether single or married and the
father of children, the name, age, birthplace and residence of the wife and of each of the
children; the approximate date of his or her arrival in the Philippines, the name of the port of
debarkation, and, if he remembers it, the name of the ship on which he came; a declaration
that he has the qualifications required by this Act, specifying the same, and that he is not
disqualified for naturalization under the provisions of this Act; that he has complied with the
requirements of section five of this Act; and that he will reside continuously in the Philippines
from the date of the filing of the petition up to the time of his admission to Philippine
citizenship. The petition must be signed by the applicant in his own handwriting and be
supported by the affidavit of at least two credible persons, stating that they are citizens of the
Philippines and personally know the petitioner to be a resident of the Philippines for the
period of time required by this Act and a person of good repute and morally irreproachable,
and that said petitioner has in their opinion all the qualifications necessary to become a
citizen of the Philippines and is not in any way disqualified under the provisions of this Act.
The petition shall also set forth the names and post-office addresses of such witnesses as
the petitioner may desire to introduce at the hearing of the case. The certificate of arrival,
and the declaration of intention must be made part of the petition.

21
103 Phil. 964 (1958).

22
Cu v. Republic, 89 Phil. 473 (1951).

23
111 Phil. 211(1961).

24
Rollo, p. 37.

Miguel Chun Eng Go v. Republic of the Philippines, 127 Phil. 43 (1967), citing Lo v.
25

Republic, 111 Phil. 1036 (1961).

G.R. No. 170603 January 29, 2007

EDISON SO, Petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

Assailed in this Petition for Review on Certiorari is the Decision1 of the Court of Appeals (CA) in CA-
G.R. CV No. 80437 which reversed the Decision2 of the Regional Trial Court (RTC) of Manila,
Branch 8, in Naturalization Case No. 02-102984. Likewise assailed is the appellate court’s
Resolution denying the Motion for Reconsideration of its Decision.

Antecedents

On February 28, 2002, petitioner Edison So filed before the RTC a Petition for Naturalization3 under
Commonwealth Act (C.A.) No. 473, otherwise known as the Revised Naturalization Law, as
amended. He alleged the following in his petition:

He was born on February 17, 1982, in Manila; he is a Chinese citizen who has lived in No. 528
Lavezares St., Binondo, Manila, since birth; as an employee, he derives an average annual income
of around P100,000.00 with free board and lodging and other benefits; he is single, able to speak
and write English, Chinese and Tagalog; he is exempt from the filing of Declaration of Intention to
become a citizen of the Philippines pursuant to Section 6 of Commonwealth Act (C.A.) No. 473, as
amended, because he was born in the Philippines, and studied in a school recognized by the
Government where Philippine history, government and culture are taught; he is a person of good
moral character; he believes in the principles underlying the Philippine constitution; he has
conducted himself in a proper and irreproachable manner during the entire period of his residence in
the Philippines in his relation with the constituted government as well as with the community in which
he is living; he has mingled socially with the Filipinos and has evinced a sincere desire to learn and
embrace the customs, traditions and ideals of the Filipino people; he has all the qualifications
provided under Section 2 and none of the disqualifications under Section 4 of C.A. No. 473, as
amended; he is not opposed to organized government or affiliated with any association or group of
persons who uphold and teach doctrines opposing all organized governments; he is not defending or
teaching the necessity or propriety of violence, personal assault or assassination for the success or
predominance of men’s ideas; he is not a polygamist or a believer in the practice of polygamy; he
has not been convicted of any crime involving moral turpitude; he is not suffering from any incurable
contagious diseases or from mental alienation; the nation of which he is a citizen is not at war with
the Philippines; it is his intention in good faith to become a citizen of the Philippines and to renounce
absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state or
sovereignty, and particularly to China; and he will reside continuously in the Philippines from the time
of the filing of the petition up to the time of his admission as citizen of the Philippines. The petition
was docketed as Naturalization Case No. 02-102984.

Attached to the petition were the Joint Affidavit4 of Atty. Artemio Adasa, Jr. and Mark B. Salcedo; and
petitioner’s Certificate of Live Birth,5 Alien Certificate of Registration,6 and Immigrant Certificate of
Residence.7

On March 22, 2002, the RTC issued an Order8 setting the petition for hearing at 8:30 a.m. of
December 12 and 17, 2002 during which all persons concerned were enjoined to show cause, if any,
why the petition should not be granted. The entire petition and its annexes, including the order, were
ordered published once a week for three consecutive weeks in the Official Gazette and also in a
newspaper of general circulation in the City of Manila. The RTC likewise ordered that copies of the
petition and notice be posted in public and conspicuous places in the Manila City Hall Building.9

Petitioner thus caused the publication of the above order, as well as the entire petition and its
annexes, in the Official Gazette on May 20, 200210 and May 27, 2002,11 and in Today, a newspaper
of general circulation in the City of Manila, on May 25, 2002 and June 1, 2002.

No one opposed the petition. During the hearing, petitioner presented Atty. Adasa, Jr. who testified
that he came to know petitioner in 1991 as the legal consultant and adviser of the So family’s
business. He would usually attend parties and other social functions hosted by petitioner’s family. He
knew petitioner to be obedient, hardworking, and possessed of good moral character, including all
the qualifications mandated by law. Atty. Adasa, Jr. further testified that petitioner was gainfully
employed and presently resides at No. 528 Lavezares Street, Binondo, Manila; petitioner had been
practicing Philippine tradition and those embodied in the Constitution; petitioner had been socially
active, mingled with some of his neighbors and had conducted himself in a proper and
irreproachable manner during his entire stay in the Philippines; and petitioner and his family
observed Christmas and New Year and some occasions such as fiestas. According to the witness,
petitioner was not disqualified under C.A. No. 473 to become a Filipino citizen: he is not opposed to
organized government or believes in the use of force; he is not a polygamist and has not been
convicted of a crime involving moral turpitude; neither is he suffering from any mental alienation or
any incurable disease.12

Another witness for petitioner, Mark Salcedo, testified that he has known petitioner for ten (10)
years; they first met at a birthday party in 1991. He and petitioner were classmates at the University
of Santo Tomas (UST) where they took up Pharmacy. Petitioner was a member of some school
organizations and mingled well with friends.13 Salcedo further testified that he saw petitioner twice a
week, and during fiestas and special occasions when he would go to petitioner’s house. He has
known petitioner to have resided in Manila since birth. Petitioner is intelligent, a person of good
moral character, and believes in the principles of the Philippine Constitution. Petitioner has a gainful
occupation, has conducted himself in a proper and irreproachable manner and has all the
qualifications to become a Filipino citizen.

Petitioner also testified and attempted to prove that he has all the qualifications and none of the
disqualifications to become a citizen of the Philippines.

At the conclusion of his testimonial evidence, petitioner offered in evidence the following documents:
(1) Certificate of Live Birth;14 (2) Alien Certificate of Registration;15 (3) Immigrant Certificate of
Residence;16 (4) Elementary Pupil’s17 and High School Student’s18 Permanent Record issued by
Chang Kai Shek College; (5) Transcript of Record issued by the University of Santo Tomas;19 (6)
Certification of Part-Time Employment dated November 20, 2002;20 (7) Income Tax Returns and
Certificate of Withholding Tax for the year 2001;21 (8) Certification from Metrobank that petitioner is a
depositor;22 (9) Clearances that he has not been charged or convicted of any crime involving moral
turpitude;23 and (10) Medical Certificates and Psychiatric Evaluation issued by the Philippine General
Hospital.24 The RTC admitted all these in evidence.

The RTC granted the petition on June 4, 2003.25 The fallo of the decision reads:

WHEREFORE, judgment is hereby rendered GRANTING the petition and declaring that petitioner
EDISON SO has all the qualifications and none of the disqualifications to become a Filipino citizen
and he is hereby admitted as citizen of the Philippines, after taking the necessary oath of allegiance,
as soon as this decision becomes final, subject to payment of cost of P30,000.00.

SO ORDERED.26

The trial court ruled that the witnesses for petitioner had known him for the period required by law,
and they had affirmed that petitioner had all the qualifications and none of the disqualifications to
become a Filipino citizen. Thus, the court concluded that petitioner had satisfactorily supported his
petition with evidence.

Respondent Republic of the Philippines, through the Office of the Solicitor General (OSG), appealed
the decision to the CA on the following grounds:

I.

THE LOWER COURT ERRED IN GRANTING THE PETITION FOR NATURALIZATION DESPITE
THE FACT THAT THE TWO (2) CHARACTER WITNESSES, NAMELY: ARTEMIO ADASA, JR.
AND MARK SALCEDO WERE NOT QUALIFIED CHARACTER WITNESSES.

II.

PETITIONER IS NOT QUALIFIED TO BE ADMITTED AS CITIZEN OF THE PHILIPPINES. 27

Respondent contended that based on the evidence on record, appellee failed to prove that he
possesses all the qualifications under Section 2 and none of the disqualifications under Section 4 of
C.A. No. 473. It insisted that his two (2) character witnesses did not know him well enough to vouch
for his fitness to become a Filipino citizen; they merely made general statements without giving
specific details about his character and moral conduct.28 The witnesses did not even reside in the
same place as petitioner.29 Respondent likewise argued that petitioner himself failed to prove that he
is qualified to become a Filipino citizen because he did not give any explanation or specific answers
to the questions propounded by his lawyer. He merely answered "yes" or "no" or gave general
statements in answer to his counsel’s questions. Thus, petitioner was unable to prove that he had all
the qualifications and none of the disqualifications required by law to be a naturalized Filipino
citizen.30

On the other hand, petitioner averred that he graduated cum laude from the UST with the degree of
Bachelor of Science in Pharmacy. He is now on his second year as a medical student at the UST
Medicine and Surgery. He avers that the requirements for naturalization under C.A. No. 473, as
amended by LOI 270, in relation to Presidential Decree Nos. 836 and 1379, had been relaxed after
the Philippine government entered into diplomatic relations with the People’s Republic of China; the
requirements were further relaxed when Republic Act (R.A.) No. 9139 was signed into
law.31 Petitioner pointed out that the petition, with all its annexes, was published in the official gazette
and a newspaper of general circulation; notices were likewise sent to the National Bureau of
Investigation, Department of Justice, Department of Foreign Affairs, and the OSG. But none from
these offices came forward to oppose the petition before the lower court.32 Petitioner insisted that he
has all the qualifications and none of the disqualifications to become Filipino. This was clearly
established by his witnesses.

In its Reply Brief, respondent alleged that R.A. No. 9139 applies to administrative naturalization filed
with the Special Committee on Naturalization. It insisted that even in the absence of any opposition,
a petition for naturalization may be dismissed.
In its Decision33 dated August 4, 2005, the CA set aside the ruling of the RTC and dismissed the
petition for naturalization without prejudice.34 According to the CA, petitioner’s two (2) witnesses
were not credible because they failed to mention specific details of petitioner’s life or character to
show how well they knew him; they merely "parroted" the provisions of the Naturalization Act without
clearly explaining their applicability to petitioner’s case.35The appellate court likewise ruled that
petitioner failed to comply with the requirement of the law that the applicant must not be less than 21
years of age on the day of the hearing of the petition; during the first hearing on December 12, 2002,
petitioner was only twenty (20) years, nine (9) months, and twenty five (25) days old, falling short of
the requirement.36 The CA stated, however, that it was not its intention to forever close the door to
any future application for naturalization which petitioner would file, and that it believes that he would
make a good Filipino citizen in due time, a decided asset to this country.37

Petitioner’s motion for reconsideration38 was denied in a Resolution39 dated November 24, 2005;
hence, the present petition grounded on the sole issue:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE

ERROR WHEN IT REVERSED THE DECISION OF THE REGIONAL TRIAL COURT OF MANILA. 40

In support of his petition, petitioner reiterates the arguments he set forth in the Brief filed before the
CA.

In its Comment41 on the petition, respondent countered that R.A. No. 9139 (which took effect on
August 8, 2001 and where the applicant’s age requirement was lowered to eighteen (18) years old),
refers only to administrative naturalization filed with the Special Committee on Naturalization; it does
not apply to judicial naturalization before the court, as in the present case.42 Respondent, through the
OSG, avers that its failure to oppose the petition before the court a quo does not preclude it from
appealing the decision of the RTC to the CA; it is even authorized to question an already final
decision by filing a petition for cancellation of citizenship.43 Lastly, respondent reiterates its argument
that petitioner’s character witnesses are not qualified to prove the former’s qualifications.

In determining whether or not an applicant for naturalization is entitled to become a Filipino citizen, it
is necessary to resolve the following issues: (1) whether or not R.A. No. 9139 applies to petitions for
naturalization by judicial act; and (2) whether or not the witnesses presented by petitioner are
"credible" in accordance with the jurisprudence and the definition and guidelines set forth in C.A. No.
473.

The petition is denied for lack of merit.

Naturalization signifies the act of formally adopting a foreigner into the political body of a nation by
clothing him or her with the privileges of a citizen.44 Under current and existing laws, there are three
ways by which an alien may become a citizen by naturalization: (a) administrative naturalization
pursuant to R.A. No. 9139; (b) judicial naturalization pursuant to C.A. No. 473, as amended; and (c)
legislative naturalization in the form of a law enacted by Congress bestowing Philippine citizenship to
an alien.45

Petitioner’s contention that the qualifications an applicant for naturalization should possess are those
provided for in R.A. No. 9139 and not those set forth in C.A. No. 473 is barren of merit. The
qualifications and disqualifications of an applicant for naturalization by judicial act are set forth in
Sections 246 and 447 of C.A. No. 473. On the other hand, Sections 348 and 449 of R.A. No. 9139
provide for the qualifications and disqualifications of an applicant for naturalization by administrative
act.
Indeed, R.A. No. 9139 was enacted as a remedial measure intended to make the process of
acquiring Philippine citizenship less tedious, less technical and more encouraging.50 It likewise
addresses the concerns of degree holders who, by reason of lack of citizenship requirement, cannot
practice their profession, thus promoting "brain gain" for the Philippines.51 These however, do not
justify petitioner’s contention that the qualifications set forth in said law apply even to applications for
naturalization by judicial act.

First. C.A. No. 473 and R.A. No. 9139 are separate and distinct laws – the former covers all aliens
regardless of class while the latter covers native-born aliens who lived here in the Philippines all their
lives, who never saw any other country and all along thought that they were Filipinos; who have
demonstrated love and loyalty to the Philippines and affinity to the customs and traditions.52 To
reiterate, the intention of the legislature in enacting R.A. No. 9139 was to make the process of
acquiring Philippine citizenship less tedious, less technical and more encouraging which is
administrative rather than judicial in nature. Thus, although the legislature believes that there is a
need to liberalize the naturalization law of the Philippines, there is nothing from which it can be
inferred that C.A. No. 473 was intended to be amended or repealed by R.A. No. 9139. What the
legislature had in mind was merely to prescribe another mode of acquiring Philippine citizenship
which may be availed of by native born aliens. The only implication is that, a native born alien has
the choice to apply for judicial or administrative naturalization, subject to the prescribed qualifications
and disqualifications.

In the instant case, petitioner applied for naturalization by judicial act, though at the time of the filing
of his petition, administrative naturalization under R.A. No. 9139 was already available.
Consequently, his application should be governed by C.A. No. 473.

Second. If the qualifications prescribed in R.A. No. 9139 would be made applicable even to judicial
naturalization, the coverage of the law would be broadened since it would then apply even to aliens
who are not native born. It must be stressed that R.A. No. 9139 applies only to aliens who were born
in the Philippines and have been residing here.

Third. Applying the provisions of R.A. No. 9139 to judicial naturalization is contrary to the intention of
the legislature to liberalize the naturalization procedure in the country. One of the qualifications set
forth in R.A. No. 9139 is that the applicant was born in the Philippines and should have been
residing herein since birth. Thus, one who was born here but left the country, though resided for
more than ten (10) years from the filing of the application is also disqualified. On the other hand, if
we maintain the distinct qualifications under each of the two laws, an alien who is not qualified under
R.A. No. 9139 may still be naturalized under C.A. No. 473.

Thus, absent a specific provision expressly amending C.A. No. 473, the law stands and the
qualifications and disqualifications set forth therein are maintained.

In any event, petitioner failed to prove that the witnesses he presented were competent to vouch for
his good moral character, and are themselves possessed of good moral character. It must be
stressed that character witnesses in naturalization proceedings stand as insurers of the applicant’s
conduct and character. Thus, they ought to testify on specific facts and events justifying the
inference that the applicant possesses all the qualifications and none of the disqualifications
provided by law.53

Petitioner’s witnesses, Atty. Adasa and Salcedo, did not testify on his specific acts; they did not
elaborate on his traits. Their testimonies do not convince the Court that they personally know
petitioner well and are therefore in a position to vouch for his qualifications. As correctly found by the
CA, the witnesses’ testimonies consisted mainly of general statements in answer to the leading
questions propounded by his counsel. What they conveniently did was to enumerate the
qualifications as set forth in the law without giving specific details. The pertinent portion of Atty.
Adasa’s testimony follows:

q Do you know the petitioner Edison So?

a Yes, Sir.

q Will you please tell us how did you come to know him?

a Well I came to know him[,] the petitioner[,] when I was the legal consultant and adviser of their
family business and I used to ah (sic) me[e]t him during my visit to their place way back in 1991 to
1992.

q From that day of 1991 up to the present, is your relationship with the petitioner more or less
contin[u]ous?

a Yes, sir, because aside from the usual professional visit that I did to their family some social
function was sponsored normally and I am (sic) invited and I used to attend.

q During the birthday party of the petitioner, did you usually attend petitioner’s birthday?

a On several occasions I attend the birthday.

q Will you please tell us where the petitioner resides at present?

a At present the petitioner resides at No. 528 Lavezares Street, Binondo, Manila.

q Do you know for how long the petitioner resides in the Philippines?

a As far as I personally known (sic) Your Honor is that since birth.

q During all the times that you have know[n] the petitioner, what is your impression of his conduct?

a Well ah (sic) I have personally known him to be obedient and hard working individual and ah (sic)
he has a good moral character and he has been ah (sic) no adverse report concerning the character
of the petitioner.

q In your opinion does the petitioner has the qualifications necessary to become [a] citizen of the
Philippines?

a Yes.

q Can you tell us why do you say so?

a I would say Your Honor that petitioner has posses (sic) all the qualifications mandated by law and
presently he is more than 21 years old and he has resided in the Philippines particularly in the City of
Manila contin[u]ously for more than ten (10) years and that since his birth; and that he has good
moral character and I have observed that ah (sic) he has been practicing Philippine traditions and ah
(sic) those embodied in the Philippine constitution and he has been socially active and meddle (sic)
some of his neighbors and ah (sic) I am sure he has desire to embrace and learn the customs and
ideas and traditions in the Philippine[s] and as I earlier mentioned that he conducted himself in
proper and approachable (sic) manner during his entire residence in our country and he has a
gainful occupation.

q Will you please tell us what are these customs which the petitioner embraced?

a Well I have observed that ah (sic) together with his family they used to ah observed (sic) the usual
Filipino celebration during Christmas and new year and some occasions such as fiestas.

q And do you know whether petitioner is not disqualified under Commonwealth Act to become
Filipino citizen of the Philippines (sic)?

a Ah there has been no incident or occasion which I learned that would disqualify of coming (sic) the
citizen of the Republic of the Philippines. I have noticed that ah (sic) he is qualified under
Commonwealth Act 473 as amended because he is not opposed to ah (sic) organized government.
His family and himself does not believed (sic) in the use of force in the success of his ideas and ah
(sic) he is not a poligamist (sic) or believer in the practice of illegal and he has not been convicted in
any crime involving him in any crime (sic). and he is not suffering from any mental alienation or any
incurable contidious (sic) disease. as provided for.

q Will you please tell us why you know all these stage?

a Because of ah (sic) the personal attachment with his family we have continuously having ah (sic)
the usual contact with his family.54

It can thus be inferred that Atty. Adasa is close to petitioner’s family, but not specifically to petitioner.
Atty. Adasa’s statements refer to his observations on the family’s practices and not to petitioner in
particular. Nothing in his testimony suggests that he was close to petitioner and knew him well
enough to vouch for his qualifications.

Salcedo, on the other hand, testified thus:

q Now do you know the petitioner in this case Edison So?

a Yes, Sir.

q Are you personally acquainted with him?

a Yes, Sir.

q How long have you known the petitioner?

a I have known him for about ten (10) years, Sir.

q Will you please inform the Honorable court under what circumstances did you come to know the
petitioner?

a I met him in a birthday party in 1991, Sir.

q And from 1991 up to the present is your relationship with the petitioner more or less contin[u]ous?

a Yes, Sir.

q How often did you see the petitioner?

a I see him twice a week, Sir.

q And during this time that you met the petitioner, what did you usually do?

a We play some games, Sir. We play Patentero (sic).

q Do you go to church together?

a Yes, Sir.

q During fiestas in your place, did the petitioner go?

a Yes, Sir.

q How about during fiestas in the place where the petitioner reside[s], did you also go during fiestas?

a Yes, Sir.

q During occasion in the house of the petitioner, are you invited?

a Yes, Sir.

q How many time[s] did you go to his (sic) residence of the petitioner?

a Twice a week, sir.

q Will you please tell us where the petitioner resides?

a The petitioner resides at 528 Lavezares Street, Tondo, Manila, Sir.

q For how long does the petitioner reside in that address?

a Since birth, Sir.

q During all the times that you have known the petitioner, will you please tell us your impression of
his conduct?

a He is a person of good moral, sir, and he believed in the principles of the Philippines (sic)
Constitution.

q Will you please cite one or two of these principles underlined the principles (sic) of the Philippines
(sic) Constitution?
a Ah the Philippines is a Republican of the (sic) state, sovereignty preside (sic) over the people and
the government authority emanate from within; and the other one is the civilian government is not
supreme over the military.

q Now in your opinion does the petitioner have all the qualifications necessary to become a citizen of
the Philippines?

a Yes, Sir.

q What are these qualifications?

a He is at least 21 years old, he is a person of good moral and has been residing in the Philippines
since birth.

q What else?

a He must be a Filipino and ah must practice the traditions and customs, Sir.

q Do you know whether the petitioner conducted himself in a proper and appraochable (sic) manner
during the period of his residence in the Philippines?

a Yes, Sir.

q Do you know if the petitioner has a gainful occupation?

a Yes, Sir.

q What is the occupation of the petitioner?

a Ah (sic) he is the secretary in a wood factory in Commonwealth, Sir.

q And aside from being the secretary, what else did the petitioner do?

a He help (sic) in the factory cargo, Sir.

q Is the petitioner still a student?

a Yes, Sir.

q Where is he studying?

a In UST, Sir.

q Is he your classmate?

a Yes, Sir.

q What was his course?

a Pharmacy, Sir.
q So when you said he was the secretary he only works as part time secretary?

a Yes, Sir.

q You said the petitioner meddle (sic) socially with the Filipinos?

a Yes, Sir.

q Will you please name at least one of those Filipinos the petitioner meddle (sic) with?

a Samuel Falmera, Sir, Marlon Kahocom, Sir.

q Who else?

a Elmer Ramos, Sir.

q Who else?

a Sharmaine Santos, Sir.

q You said the petitioner is of good moral character?

a Yes, Sir.

q Why do you know that?

a As a classmate I can see him I go with him and ah (sic) I can see that he has ah better
approached (sic) with other people and I can see that he mixed very well with friends.

q So during school days you see him everyday?

a Yes, Sir.

q When there are no classes during the vacation you see the petitioner twice a week?

a Yes, Sir.

q Does the petitioner (sic), do you think the petitioner is not disqualified to become the citizen of the
Republic of the Philippines?

a Yes, Sir, he is not disqualified, Sir.

q Why do you say that he is not disqualified?

a Because he abide [by] any law in the government, sir, ah (sic) he is not polygamus and he is not
convicted of any crime, Sir.

q Do you know ever the petitioner oppose to any organized government?

a No, Sir.
q Do you know whether he believe[s] in the use of force in any such ideas?

a No, Sir.

q Do you know if the petitioner is a believer in the practice of polygamy?

a No, Sir.

q Do you know whether the petitioner suffer[s] from mental alienation or incurable disease illnesses?

a No, Sir.

q Why do you know?

a I know him personally, sir, I have been with him as my classmate, sir and ah (sic) he is a very
intelligent person, Sir.

q Is the petitioner a member also of any organization or association in your school?

a Yes, Sir.

q What organization?

a He is a member of Wishten and a member of starget, Sir.

q What does starget means?

a Starget is an organization of Chinese community in UST, Sir.

q How about the other one which you mentioned?

a Ah (sic) these are twisting, sir he represents the ah the (sic) school intercollegiate, Sir.55

Again, Salcedo did not give specific details on petitioner’s qualifications.

In sum, petitioner’s witnesses clearly did not personally know him well enough; their testimonies do
not satisfactorily establish that petitioner has all the qualifications and none of the disqualifications
prescribed by law.

In naturalization proceedings, it is the burden of the applicant to prove not only his own good moral
character but also the good moral character of his/her witnesses, who must be credible
persons.56 Within the purview of the naturalization law, a "credible person" is not only an individual
who has not been previously convicted of a crime; who is not a police character and has no police
record; who has not perjured in the past; or whose affidavit or testimony is not incredible. What must
be credible is not the declaration made but the person making it. This implies that such person must
have a good standing in the community; that he is known to be honest and upright; that he is reputed
to be trustworthy and reliable; and that his word may be taken on its face value, as a good warranty
of the applicant’s worthiness.57
The records likewise do not show that the character witnesses of petitioner are persons of good
standing in the community; that they are honest and upright, or reputed to be trustworthy and
reliable. The most that was established was the educational attainment of the witnesses; however,
this cannot be equated with their credibility. In fine, petitioner focused on presenting evidence
tending to build his own good moral character and neglected to establish the credibility and good
moral character of his witnesses.58

We do not agree with petitioner’s argument that respondent is precluded from questioning the RTC
decision because of its failure to oppose the petition. A naturalization proceeding is not a judicial
adversary proceeding, and the decision rendered therein does not constitute res judicata. A
certificate of naturalization may be cancelled if it is subsequently discovered that the applicant
obtained it by misleading the court upon any material fact. Law and jurisprudence even authorize the
cancellation of a certificate of naturalization upon grounds or conditions arising subsequent to the
granting of the certificate.59 If the government can challenge a final grant of citizenship, with more
reason can it appeal the decision of the RTC within the reglementary period despite its failure to
oppose the petition before the lower court.

Thus, petitioner failed to show full and complete compliance with the requirements of naturalization
law. For this reason, we affirm the decision of the CA denying the petition for naturalization without
prejudice.

It must be stressed that admission to citizenship is one of the highest privileges that the Republic of
the Philippines can confer upon an alien. It is a privilege that should not be conferred except upon
persons fully qualified for it, and upon strict compliance with the law.60

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO

Associate Justice Asscociate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, it is
hereby certified that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

1Penned by Associate Justice Renato C. Dacudao (Chairman), with Associate Justices

Edgardo F. Sundiam and Japar B. Dimaampao, concurring; rollo, pp. 51-61.

2 Penned by Judge Felixberto T. Olalia, Jr.; id. at 21-23.

3 Rollo, pp. 14-15.

4 Exhibit "M"; records, p. 3.

5 Exhibit "N"; id. at 5.

6 Exhibit "O"; id. at 6.

7 Exhibit "O-1"; id. at 7.

8 Rollo, pp. 16-17.

9 Id. at 17.

10 Vol. 98, No. 20, pp. 2546-2553.

11 Vol. 98, No. 21, pp. 2720-2727.

12 TSN, December 12, 2002, pp. 4-13.

13 Id. at 14-29.

14 Exhibit "N"; records, p. 5.

15 Exhibit "O"; id. at 6.

16 Exhibit "O-1"; id. at 7.

17 Exhibit "P"; id. at 83.

18 Exhibit "P-1"; id. at 84.

19 Exhibits "P-3" and "P-3A"; id. at 86-87.

20 Exhibit "Q"; id. at 87.

21 Exhibit. "Q-2"; id. at 90.

22 Exhibit "R"; id. at 91.

23 Exhibits "S," "S-1," "S-2" and "S-3"; id. at 92-95.

24 Exhibits "T" to "T-5"; id. at 97-102.

25 Rollo, pp. 21-23.

26 Id. at 23.

27 Id. at 26.

28 Id. at 38.

29 Id. at 39.

30 Id. at 43.

31 Id. at 46.

32 Id. at 47.

33 Id. at 51-61.

34 The dispositive portion reads:

UPON THE VIEW WE TAKE OF THIS CASE, THUS, the decision appealed from
must be, as it is hereby VACATED and SET ASIDE. The petition for naturalization
subject of Case No. 02-102984 is DISMISSED, without prejudice. No costs.

SO ORDERED. (Rollo, p. 61)

35 Id. at 59.

36 Id. at 60.

37 Id.

38 Id. at 62-64.

39 Id. at 65.

40 Id. at 6.

41 Id. at 79-91.
42 Id. at 84-85.

43 Id. at 88-89.

44 RECORD, SENATE 11th CONGRESS (June 4-5, 2001).

45 R.E. Agpalo, Philippine Political Law, 2005 ed., 63-64.

46Section 2. Qualifications. – Subject to section four of this Act, any person having the
following qualifications may become a citizen of the Philippines by naturalization:

First. He must be not less than twenty-one years of age on the day of the hearing of
the petition;

Second. He must have resided in the Philippines for a continuous period of not less
than ten years;

Third. He must be of good moral character and believes in the principles underlying
the Philippine Constitution, and must have conducted himself in a proper and
irreproachable manner during the entire period of his residence in the Philippines in
his relation with the constituted government as well as with the community in which
he is living;

Fourth. He must own real estate in the Philippines worth not less than five thousand
pesos, Philippine currency, or must have some known lucrative trade, profession, or
lawful occupation;

Fifth. He must be able to speak and write English or Spanish and any one of the
principal Philippine languages; and

Sixth. He must have enrolled his minor children of school age, in any of the public
schools recognized by the Office of Private Education of the Philippines (now the
Department of Education, Culture and Sports), where Philippine history, government
and civics are taught or prescribed as part of the school curriculum, during the entire
period of residence in the Philippines required of him prior to the hearing of this
petition for naturalization as Philippine citizen.

47 Section 4. Who are disqualified. – The following cannot be naturalized as Philippine

citizens:

(a) Persons opposed to organized government or affiliated with any association or

group of persons who uphold and teach doctrines opposing all organized
governments;

(b) Persons defending or teaching the necessity or propriety of violence, personal

assault, or assassination of the success and predominance of their ideas;

(c) Polygamist or believers in the practice of polygamy;

(d) Persons convicted of crimes involving moral turpitude;

 (e) Persons suffering from mental alienation or incurable contagious diseases;

(f) Persons who, during the period of their residence in the Philippines, have not
mingled socially with the Filipinos, or who have not evinced a sincere desire to learn
and embrace the customs, traditions, and ideals of the Filipinos;

(g) Citizens or subjects of nations with whom the United States and the Philippines
are at war, during the period of such war;

(h) Citizens or subject of a foreign country other than United States, whose laws do
not grant Filipinos the right to become naturalized citizens or subjects thereof.

48Section 3. Qualifications. – Subject to the provisions of the succeeding section, any person
desiring to avail of the benefits of this Act must meet the following qualifications:

(a) The applicant must be born in the Philippines and residing therein since birth;

(b) The applicant must not be less than eighteen (18) years of age, at the time of
filing of his/her petition;

(c) The applicant must be of good moral character and believes in the underlying
principles of the Constitution, and must have conducted himself/herself in a proper
and irreproachable manner during his/her entire period of residence in the
Philippines in his relation with the duly constituted government as well as with the
community in which he/she is living;

(d) The applicant must have received hid/her primary and secondary education in
any public school or private educational institution duly recognized by the
Department of Education Culture and Sports, where Philippine history, government
and civics are taught and prescribed as part of the school curriculum and whose
enrollment is not limited to any race or nationality; Provided, That should he/she have
minor children of school age, he/she must have enrolled them in similar schools;

(e) The applicant must have a known trade, business, profession or lawful
occupation, from which he/she derives income sufficient for his/her support and if
he/she is married and/or has dependents, also that of his/her
family; Provided, however, That this shall not apply to applicants who are college
degree holders but are unable to practice their profession because they are
disqualified to do so by reason of their citizenship;

(f) The applicant must be able to read, write and speak Filipino or any of the dialects
of the Philippines; and

(g) The applicant must have mingled with the Filipinos and evinced a sincere desire
to learn and embrace the customs, traditions and ideals of the Filipino people.

49 Section 4. Who are disqualified. – The following cannot be naturalized as Philippine

citizens:
 (a) Those opposed to organized government or affiliated with any association or
group of persons who uphold and teach doctrines opposing all organized
governments;

(b) Those defending or teaching the necessity or propriety of violence, personal

assault, or assassination of the success and predominance of their ideas;

(c) Polygamists or believers in the practice of polygamy;

(d) Those convicted of crimes involving moral turpitude;

(e) Those suffering from mental alienation or incurable contagious diseases;

(f) Those who, during the period of their residence in the Philippines, have not
mingled socially with the Filipinos, or who have not evinced a sincere desire to learn
and embrace the customs, traditions, and ideals of the Filipinos;

(g) Citizens or subjects with whom the Philippines is at war, during the period of such
war;

(h) Citizens or subjects whose laws do not grant Filipinos the right to become
naturalized citizens or subjects thereof.

50Sponsorship Speech of the late Senator Cayetano, RECORD, SENATE 11th CONGRESS
(June 4-5, 2001).

51 Id.

52 RECORD, SENATE 11th CONGRESS (June 4 and 5, 2001).

53 Republic v. Hong, G.R. No. 168877, March 24, 2006, 485 SCRA 405, 413.

54 TSN, December 12, 2002, pp. 6-12; records, pp. 26-32.

55 Id. at 16-27; records, pp. 36-47.

56 Republic v. Hong, supra note 53, at 421.

Ong v. Republic of the Philippines, 103 Phil. 964, 971 (1958); Ong Siao v. Republic, 145
57

Phil. 143, 149 (1970); Siao Tick Chong v. Republic, 143 Phil. 134, 139-140 (1970).

58 Republic v. Hong, supra, at 422.

59 Republic v. Li Yao, G.R. No. 35947, October 20, 1992, 214 SCRA 748, 752-753.

60 Id. at 754.
COMMONWEALTH ACT No. 63

AN ACT PROVIDING FOR THE WAYS IN WHICH PHILIPPINE CITIZENSHIP MAY BE LOST OR
REACQUIRED

Be it enacted by the National Assembly of the Philippines:

Section 1. How citizenship may be lost. – A Filipino citizen may lose his citizenship in any of the
following ways and/or events:

(1) By naturalization in a foreign country;

(2) By express renunciation of citizenship;

(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign

country upon attaining twenty-one years of age or more: Provided, however, That a Filipino
may not divest himself of Philippine citizenship in any manner while the Republic of the
Philippines is at war with any country;

(4) By rendering services to, or accepting commission in, the armed forces of a foreign
country: Provided, That the rendering of service to, or the acceptance of such commission in,
the armed forces of a foreign country, and the taking of an oath of allegiance incident
thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his
Philippine citizenship if either of the following circumstances is present:

(a) The Republic of the Philippines has a defensive and/or offensive pact of alliance
with the said foreign country; or

(b) The said foreign country maintains armed forces on Philippine territory with the
consent of the Republic of the Philippines: Provided, That the Filipino citizen
concerned, at the time of rendering said service, or acceptance of said commission,
and taking the oath of allegiance incident thereto, states that he does so only in
connection with his service to said foreign country: And provided, finally, That any
Filipino citizen who is rendering service to, or is commissioned in, the armed forces
of a foreign country under any of the circumstances mentioned in paragraph (a) or
(b), shall not be permitted to participate nor vote in any election of the Republic of the
Philippines during the period of his service to, or commission in, the armed forces of
said foreign country. Upon his discharge from the service of the said foreign country,
he shall be automatically entitled to the full enjoyment of his civil and political rights
as a Filipino citizen;

(5) By cancellation of the of the certificates of naturalization;

(6) By having been declared by competent authority, a deserter of the Philippine armed
forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted;
and

(7) In the case of a woman, upon her marriage to a foreigner if, by virtue of the laws in force
in her husband's country, she acquires his nationality.1
The provisions of this section notwithstanding, the acquisition of citizenship by a natural born Filipino
citizen from one of the Iberian and any friendly democratic Ibero-American countries or from the
United Kingdom shall not produce loss or forfeiture of his Philippine citizenship if the law of that
country grants the same privilege to its citizens and such had been agreed upon by treaty between
the Philippines and the foreign country from which citizenship is acquired.2

Section. 2. How citizenship may be reacquired. – Citizenship may be reacquired:

(1) By naturalization: Provided, That the applicant possess none of the disqualification's
prescribed in section two of Act Numbered Twenty-nine hundred and twenty-seven,3

(2) By repatriation of deserters of the Army, Navy or Air Corp: Provided, That a woman who
lost her citizenship by reason of her marriage to an alien may be repatriated in accordance
with the provisions of this Act after the termination of the marital status;4 and

(3) By direct act of the National Assembly.

Section 3. Procedure incident to reacquisition of Philippine citizenship. – The procedure prescribed

for naturalization under Act Numbered Twenty-nine hundred and twenty-seven,5 as amended, shall
apply to the reacquisition of Philippine citizenship by naturalization provided for in the next preceding
section: Provided, That the qualifications and special qualifications prescribed in section three and
four of said Act shall not be required: And provided, further,

(1) That the applicant be at least twenty-one years of age and shall have resided in the
Philippines at least six months before he applies for naturalization;

(2) That he shall have conducted himself in a proper and irreproachable manner during the
entire period of his residence in the Philippines, in his relations with the constituted
government as well as with the community in which he is living; and

(3) That he subscribes to an oath declaring his intention to renounce absolutely and
perpetually all faith and allegiance to the foreign authority, state or sovereignty of which he
was a citizen or subject.

Section 4. Repatriation shall be effected by merely taking the necessary oath of allegiance to the
Commonwealth6of the Philippines and registration in the proper civil registry.

Section 5. The Secretary of Justice shall issue the necessary regulations for the proper enforcement
of this Act. Naturalization blanks and other blanks required for carrying out the provisions of this Act
shall be prepared and furnished by the Solicitor General, subject to approval of the Secretary of
Justice.

Section 6. This Act shall take effect upon its approval.

Approved, October 21, 1936.

*As Amended by RA 106, RA 2639 and RA 3834.

 Words in bold in the text above are amendments introduced by RA 106, section 1,
1

approved June 2, 1947.

Statutory History of section 1:

Original text- SECTION 1. How citizenship may be lost. - A Filipino citizen

may lose his citizenship in any of the following ways and/or events: (1) By
naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the constitution or laws of a
foreign country upon attaining twenty-one years of age or more;
(4) By accepting commission in the [military, naval or air service] of a foreign
country;
(5) By cancellation of the certificate of naturalization;
(6) By having been declared by competent authority, a deserted of the Philippine
[army, navy or air corps] in time of war, unless subsequently a plenary partdon or
amnesty has been granted; and
(7) In the case of a woman, upon her marriage to a foreigner if, by virtue of the
law in force in her husband's country, she acquires his nationality. (Ed. Note: Words
in brackets were deleted in RA 106 supra.)

Words in bold in the text above are amendments introduced by RA 3834, section 1,
2

approved June 22, 1963 to the last paragraph of section 1. Said paragraph was inserted as
an amendment by RA 2639, section 1, approved June 18, 1960..
Statutory History of (last paragraph of section 1):
The provisions of the paragraph as inserted by RA 2639, being similar to the
amemded provisions, supra, except for the words in bold, are not reproduced here.

Now Ca 473.
3

See PD 725 promulgated June 5, 1975 providing for repatriation of filipino women who
4

had lost their Philippine citizenship by marriage to aliens.

Now CA 473.
5

Now Republic.
6
G.R. No. 86564 August 1, 1989

RAMON L. LABO, JR., petitioner,

vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L.
LARDIZABAL, respondents

Estelito P. Mendoza for petitioner.

Rillera and Quintana for private respondent.

CRUZ, J.:

The petitioner asks this Court to restrain the Commission on Elections from looking into the question
of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a
foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction
to conduct any inquiry into this matter, considering that the petition for quo warranto against him was
not filed on time.

It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of
the payment of the filing fee, which the petitioner contends was an indispensable requirement. The
fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a
horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the
reglementary period, there is no question that this petition must be granted and the challenge
abated.

The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20,
1988. The petition for quo warranto was filed by the private respondent on January 26, 1988, but no
filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days
after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be
deemed filed only when the fee was paid. This was done beyond the reglementary period provided
for under Section 253 of the Omnibus Election Code reading as follows:

SEC. 253. Petition for quo warranto. — Any voter contesting the election of a
Member of the Batasang Pambansa, regional, provincial, or city officer on the ground
of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission within ten days after the proclamation
of the result of the election.

The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the
Procedural Rules of the COMELEC providing that —

Sec. 5. No petition for quo warranto shall be given due course without the payment of
a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research
fee as required by law.

and stresses that there is abundant jurisprudence holding that the payment of the filing fee is
essential to the timeliness of the filling of the petition itself. He cites many rulings of the Court to this
effect, specifically Manchester v. Court of Appeals. 1
For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it
was flied ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for
Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the
COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288.
No docket fee was collected although it was offered. It was only on February 8, 1988, that the
COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case
No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that date.

The private respondent argues further that during the period when the COMELEC regarded his
petition as a pre-proclamation controversy, the time for filing an election protest or quo
warranto proceeding was deemed suspended under Section 248 of the Omnibus Election Code. 2 At
any rate, he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by the petitioner,
became effective only on November 15, 1988, seven days after publication of the said Rules in the
Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January
26,1988, when he filed his petition with the COMELEC.

In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the
payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of
the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively.
To this, the private respondent counters that the latter resolution was intended for the local elections
held on January 30, 1980, and did not apply to the 1988 local elections, which were supposed to be
governed by the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3,
1988, following the lapse of seven days after its publication as required by RA No. 6646, otherwise
known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its Section
30 provides in part:

Sec. 30. Effectivity of Regulations and Orders of the Commission. — The rules and
regulations promulgated by the Commission shall take effect on the seventh day
after their publication in the Official Gazette or in at least (2) daily newspapers of
general circulation in the Philippines.

The Court has considered the arguments of the parties and holds that the petition for quo
warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day
period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-
proclamation proceeding which did not require the payment of a filing fee. At that, we reach this
conclusion only on the assumption that the requirement for the payment of the fees in quo
warranto proceedings was already effective. There is no record that Res. No. 1450 was even
published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its
publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer,
or after the petition was filed.

The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the resolutions became effective
"immediately upon approval" simply because it was so provided therein. We held in that case that
publication was still necessary under the due process clause despite such effectivity clause.

In any event, what is important is that the filing fee was paid, and whatever delay there may have
been is not imputable to the private respondent's fault or neglect. It is true that in
the Manchester Case, we required the timely payment of the filing fee as a precondition for the
timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however this
Court, taking into account the special circumstances of that case, declared:
 This Court reiterates the rule that the trial court acquires jurisdiction over a case only
upon the payment of the prescribed filing fee. However, the court may allow the
payment of the said fee within a reasonable time. In the event of non-compliance
therewith, the case shall be dismissed.

The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted
on June 20, 1988, thus:

Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are not
paid, the Commission may refuse to take action thereon until they are paid and may
dismiss the action or the proceeding. (Emphasis supplied.)

The Court notes that while arguing the technical point that the petition for quo warranto should be
dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his
alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the
requirement of citizenship as a qualification for public office can be so demeaned. What is worse is
that it is regarded as an even less important consideration than the reglementary period the
petitioner insists upon.

This matter should normally end here as the sole issue originally raised by the petitioner is the
timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of
that proceeding, and considering the necessity for an early resolution of that more important
question clearly and urgently affecting the public interest, we shall directly address it now in this
same action.

The Court has similarly acted in a notable number of cases, thus:

From the foregoing brief statement of the nature of the instant case, it would appear
that our sole function in this proceeding should be to resolve the single issue of
whether or not the Court of Appeals erred in ruling that the motion for new trial of the
GSIS in question should indeed be deemed pro forma.But going over the extended
pleadings of both parties, the Court is immediately impressed that substantial justice
may not be timely achieved, if we should decide this case upon such a technical
ground alone. We have carefully read all the allegations and arguments of the
parties, very ably and comprehensively expounded by evidently knowledgeable and
unusually competent counsel, and we feel we can better serve the interests of justice
by broadening the scope of our inquiry, for as the record before us stands, we see
that there is enough basis for us to end the basic controversy between the parties
here and now, dispensing, however, with procedural steps which would not anyway
affect substantially the merits of their respective claims. 6

xxx

While it is the fault of the petitioner for appealing to the wrong court and thereby
allowing the period for appeal to lapse, the more correct procedure was for the
respondent court to forward the case to the proper court which was the Court of
Appeals for appropriate action. Considering, however, the length of time that this
case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin,
(112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of
Appeals, (135 SCRA 37) which states:
 ... it is a cherished rule of procedure for this Court to always strive to
settle the entire controversy in a single proceeding leaving no root or
branch to bear the seeds of future litigation. No useful purpose will be
served if this case is remanded to the trial court only to have its
decision raised again to the Intermediate Appellate Court and from
there to this Court. (p. 43)

Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R.
No. 50141, January 29, 1988), we stated that:

... But all those relevant facts are now before this Court. And those facts dictate the
rendition of a verdict in the petitioner's favor. There is therefore no point in referring
the case back to the Court of Appeals. The facts and the legal propositions involved
will not change, nor should the ultimate judgment. Considerable time has already
elapsed and, to serve the ends of justice, it is time that the controversy is finally laid
to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57;
Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of
Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v.
Mabilangan, 105 Phil. 162). Sound practice seeks to accommodate the theory which
lâw phî1.ñèt

avoids waste of time, effort and expense, both to the parties and the government, not
to speak of delay in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592,
597). A marked characteristic of our judicial set-up is that where the dictates of
justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat
v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v.
Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court
act, and act with finality. 7

xxx

Remand of the case to the lower court for further reception of evidence is not
necessary where the court is in a position to resolve the dispute based on the
records before it. On many occasions, the Court, in the public interest and the
expeditious administration of justice, has resolved actions on the merits instead of
remanding them to the trial court for further proceedings, such as where the ends of
justice would not be subserved by the remand of the case or when public interest
demands an early disposition of the case or where the trial court had already
received all the evidence of the parties. 8

This course of action becomes all the more justified in the present case where, to repeat for stress, it
is claimed that a foreigner is holding a public office.

We also note in his Reply, the petitioner says:

In adopting private respondent's comment, respondent COMELEC implicitly adopted

as "its own" private respondent's repeated assertion that petitioner is no longer a
Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified
itself, by reason of prejudgment, from resolving the petition for quo warranto filed by
private respondent still pending before it? 9

This is still another reason why the Court has seen fit to rule directly on the merits of this case.
Going over the record, we find that there are two administrative decisions on the question of the
petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982,
and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the
Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner
was not a citizen of the Philippines. 11

The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with
Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan
concurring in the dismissal of the petition "without prejudice to the issue of the respondent's
citizenship being raised anew in a proper case." Commissioner Sagadraca reserved his vote, while
Commissioner Felipe was for deferring decision until representations shall have been made with the
Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian.

The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and
Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is
important to observe that in the proceeding before the COMELEC, there was no direct proof that the
herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was
eventually rejected, was merely inferred from the fact that he had married an Australian citizen,
obtained an Australian passport, and registered as an alien with the CID upon his return to this
country in 1980.

On the other hand, the decision of the CID took into account the official statement of the Australian
Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still
an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is
reproduced in full as follows:

I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of

appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October
1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting
Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in
response to the subpoena Testificandum dated 9 April 1984 in regard to the Petition for
disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that
the statement is true and correct.

STATEMENT

A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in
the Philippines to an Australian citizen. As the spouse of an Australian citizen, he
was not required to meet normal requirements for the grant of citizenship and was
granted Australian citizenship by Sydney on 28 July 1976.

B) Any person over the age of 16 years who is granted Australian citizenship must
take an oath of allegiance or make an affirmation of allegiance. The wording of the
oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not
necessarily have any effect on his former nationality as this would depend on the
citizenship laws of his former country.

C) The marriage was declared void in the Australian Federal Court in Sydney on 27
June 1980 on the ground that the marriage had been bigamous.

D) According to our records LABO is still an Australian citizen.

 E) Should he return to Australia, LABO may face court action in respect of Section 50
of Australian Citizenship Act 1948 which relates to the giving of false or misleading
information of a material nature in respect of an application for Australian citizenship.
If such a prosecution was successful, he could be deprived of Australian citizenship
under Section 21 of the Act.

F) There are two further ways in which LABO could divest himself of Australian
citizenship:

(i) He could make a declaration of Renunciation of Australian citizenship under

Section 18 of the Australian Citizenship Act, or

(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary
act other than marriage, then he would automatically lose as Australian citizenship
under Section 17 of the Act.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF

THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT
MANILA IN THE PHILIPPINES.

(Signed) GRAHAM C. WEST Consul

This was affirmed later by the letter of February 1, 1988, addressed to the private
respondent by the Department of Foreign Affairs reading as follows: 13

Sir:

With reference to your letter dated 1 February 1988, I wish to inform you that inquiry
made with the Australian Government through the Embassy of the Philippines in
Canberra has elicited the following information:

1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.

2) That prior to 17 July 1986, a candidate for Australian citizenship had to either
swear an oath of allegiance or make an affirmation of allegiance which carries a
renunciation of "all other allegiance.

Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO,
JR. Assistant Secretary

The decision also noted the oath of allegiance taken by every naturalized Australian reading as
follows:

OATH OF ALLEGIANCE

I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful
and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia,
Her heirs and successors according to law, and that I will faithfully observe the laws
of Australia and fulfill my duties as an Australian citizen. 14

and the Affirmation of Allegiance, which declares:

 AFFIRMATION OF ALLEGIANCE

I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare
that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia, Her heirs and successors according to law, and that I will
faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15

The petitioner does not question the authenticity of the above evidence. Neither does he deny that
he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in
1980, when he declared before the immigration authorities that he was an alien and registered as
such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his
status from immigrant to a returning former Philippine citizen and was granted Immigrant Certificate
of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a
number of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of
the barangay court on the ground that he was a foreigner. 18

The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not
divest the petitioner of his citizenship, although, as earlier noted, not all the members joined in this
finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was
not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when
he performed these acts.

The private respondent questions the motives of the COMELEC at that time and stresses Labo's
political affiliation with the party in power then, but we need not go into that now.

There is also the claim that the decision can no longer be reversed because of the doctrine of res
judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as
the Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and
seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the
petitioner filed his reply 20 to the private respondent's comment. Besides, one of the requisites of res
judicata, to wit, identity of parties, is not present in this case.

The petitioner's contention that his marriage to an Australian national in 1976 did not automatically
divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically
ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was
naturalized as such through a formal and positive process, simplified in his case because he was
married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of
Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other
allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia ..." and to fulfill his duties "as an Australian citizen."

The petitioner now claims that his naturalization in Australia made him at worst only a dual national
and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against
the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may
be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of
citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a
foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this
connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is
inimical to the national interest and shall be dealt with by law."

Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after
it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did
not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not
concern us here. That is a matter between him and his adopted country. What we must consider is
the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly
embraced the citizenship of a foreign country. The possibility that he may have been subsequently
rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a
citizen of the Philippines.

Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act
of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the
petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not
point to any judicial decree of naturalization as to any statute directly conferring Philippine citizenship
upon him. Neither has he shown that he has complied with PD No. 725, providing that:

... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire
Philippine citizenship through repatriation by applying with the Special Committee on
Naturalization created by Letter of Instruction No. 270, and, if their applications are
approved, taking the necessary oath of allegiance to the Republic of the Philippines,
after which they shall be deemed to have reacquired Philippine citizenship. The
Commission on Immigration and Deportation shall thereupon cancel their certificate
of registration. (Emphasis supplied.)

That is why the Commission on Immigration and Deportation rejected his application for the
cancellation of his alien certificate of registration. And that is also the reason we must deny his
present claim for recognition as a citizen of the Philippines.

The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen
of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of
his alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42
of the Local Government Code providing in material part as follows:

Sec. 42. Qualifications. — An elective local official must be a citizen of the

Philippines, at least twenty-three years of age on election day, a qualified voter
registered as such in the barangay, municipality, city or province where he proposes
to be elected, a resident therein for at least one year at the time of the filing of his
certificate of candidacy, and able to read and write English, Filipino, or any other
local language or dialect.

The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not
frustrate the will of the electorate of Baguio City, who elected him by a "resonant and thunderous
majority." To be accurate, it was not as loud as all that, for his lead over the second-placer was only
about 2,100 votes. In any event, the people of that locality could not have, even unanimously,
changed the requirements of the Local Government Code and the Constitution. The electorate had
no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a
stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as
mayor of their city. Only citizens of the Philippines have that privilege over their countrymen.

The probability that many of those who voted for the petitioner may have done so in the belief that
he was qualified only strengthens the conclusion that the results of the election cannot nullify the
qualifications for the office now held by him. These qualifications are continuing requirements; once
any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar,
the citizenship and voting requirements were not subsequently lost but were not possessed at all in
the first place on the day of the election. The petitioner was disqualified from running as mayor and,
although elected, is not now qualified to serve as such.

Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election, he was obviously not the choice of
the people of Baguio city.

The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 decided in 1985.
In that case, the candidate who placed second was proclaimed elected after the votes for his
winning rival, who was disqualified as a turncoat and considered a non-candidate, were all
disregarded as stray. In effect, the second placer won by default. That decision was supported by
eight members of the Court then 23 with three dissenting 24 and another two reserving their
vote. 25 One was on official leave. 26

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the
earlier case of Geronimo v. Ramos, 27 Which represents the more logical and democratic rule. That
case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes 28 was supported
by ten members of the Court 29 without any dissent, although one reserved his vote, 30 another took
no part 31 and two others were on leave. 32 There the Court held:

... it would be extremely repugnant to the basic concept of the constitutionally

guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that
they do not choose him.

Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is a
fundamental Idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)

The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a
contrary political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.

It remains to stress that the citizen of the Philippines must take pride in his status as such and
cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to
grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for
another land that may offer him material and other attractions that he may not find in his own
country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his
allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be
welcomed back with open arms once his taste for his adopted country turns sour or he is himself
disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It
may be restored only after the returning renegade makes a formal act of re-dedication to the country
he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of
the Philippines. This may not be accomplished by election to public office.

WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and
therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to
VACATE his office and surrender the same to the Vice-Mayor of Baguio City, once this decision
becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griñ;o-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTTIERREZ, JR., J.,concurring:

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire
of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the
Court's decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because I
cannot see how the Court can countenance a citizen of a foreign country or one who has renounced
Filipino citizenship sitting as the mayor of one of the most important cities in the Philippines.

What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the
citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction
of the COMELEC and remanding the case for further proceedings and the rendition of a decision.
Under Section 7, Article IXA of the Constitution, a decision, order, or ruling of the COMELEC may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty day from receipt of a
copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as
yet, be elevated to us for review. I, therefore, reiterate my statement in Frivaldo that my concurrence
is limited only to cases involving citizenship and disloyalty but not to any of the many other grounds
for disqualification cited in my concurring opinion.

Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by

the singular achievements in the beautification of Baguio City, in the peace and order situation, and
in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo
assumed the mayorship. However, I see no other way this case can be resolved except by adopting
a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I
join the rest of the Court.

Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griñ;o-Aquino Medialdea and Regalado, JJ., concur.
Separate Opinions

GUTTIERREZ, JR., J.,concurring:

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire
of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the
Court's decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because I
cannot see how the Court can countenance a citizen of a foreign country or one who has renounced
Filipino citizenship sitting as the mayor of one of the most important cities in the Philippines.

What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the
citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction
of the COMELEC and remanding the case for further proceedings and the rendition of a decision.
Under Section 7, Article IXA of the Constitution, a decision, order, or ruling of the COMELEC may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty day from receipt of a
copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as
yet, be elevated to us for review. I, therefore, reiterate my statement in Frivaldo that my concurrence
is limited only to cases involving citizenship and disloyalty but not to any of the many other grounds
for disqualification cited in my concurring opinion.

Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by

the singular achievements in the beautification of Baguio City, in the peace and order situation, and
in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo
assumed the mayorship. However, I see no other way this case can be resolved except by adopting
a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I
join the rest of the Court.

Footnotes

1 49 SCRA 562. SYCIP, SALAZAR

2 Sec. 248. Effect of filing petition to annul or suspend the proclamation. The filing
with the Commission of a petition to annul or to suspend the proclamation of any
candidate shall suspend the running of the period within which to file an election
protest or quo warranto proceedings.

3 Rule 44, See. 4. COMELEC Rules of Procedure, Effectivity. These Rules shall be
published in the Official Gazette and shall take effect on the seventh day following its
publication. Actually, the Rules became effective seven days after the official release
of the Official Gazette dated June 27, 1988 on November 8, 1988.

4 146 SCRA 446.

5 G.R. Nos. 79937-38, February 13, 1989.

6 Velasco v. Court of Appeals, 95 SCRA 616. See also Ortigas v. RUIZ, 148 SCRA
326; First Asian Transport and Shipping Agency, Inc. v. Ople 142 SCRA 542;
Quisumbing v. Court of Appeals, 122 SCRA 031 Del Castillo v. Jaymalin, 112 SCRA
629; Francisco v. City, of Davao, 12 SCRA 628.

7 Tejones v. Gironella 159 SCRA 100.

8 Lianga Bay Logging Co., Inc. v. CA, 157 SCRA 357.

9 Rollo, p. 159.

10 Ibid., pp. 182A-1 95.

11 Id., pp. 94-107.

12 Id. Emphasis supplied.

13 Id. Emphasis supplied.

14 Id. Emphasis supplied.

15 Id. Emphasis supplied.

16 Id.

17 Id.

18 (i) Statement dated 25 November 1976 that he is an "Australian made before Det.
Abaya.

(ii) Statement affirming that he is an Australian citizen in the affidavit-complaint

executed on 1 July 1988 and in the complaint filed on 13 January 1982 with the City,
Court of Baguio: "... being an Australian citizen the subject of this complaint is one of
which the Barangay Court cannot take cognizance of."

19 Soria v. Commissioner of Immigration, 37 SCRA 213; Lee v. Commissioner of

Immigration, 42 SCRA 561; Sia Reyes v. Deportation Board, 122 SCRA 478.

20 Rollo, pp. 159-160.

21 Art. V, Sec. 1, 1987 Constitution.

22 137 SCRA 740.

23 Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la

Fuente, Alampay and Aquino, JJ., concurring.

24 Teehankee, Acting C.J., Abad Santos and Melencio- Herrera,

25 Plana and Gutierrez, Jr., JJ.

26 Fernando, C.J.

27 136 SCRA 435.

28 23 Phil. 238.
29 Gutierrez, Jr., J., ponente, with Teehankee, Abad Santos, Melencio-Herrera,
Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring.

30 Makasiar, J.

31 Aquino, J.

32 Fernando, C.J. and Concepcion, Jr., C.J.

33 Except in times of war, under CA No. 63.

G.R. No. 105111 July 3, 1992

RAMON L. LABO, Jr., petitioner,

vs.
COMMISSION ON ELECTIONS, and ROBERTO ORTEGA, respondents.

G.R. No. 105384 July 3, 1992

ROBERTO C. ORTEGA, petitioner,

vs.
COMMISSION ON ELECTIONS, and RAMON L. LABO, Jr., respondents.

BIDIN, J.:

This is the second time1 that this Court is called upon to rule on the citizenship of Ramon Labo, Jr.,
who, believing that he is a Filipino citizen launched his candidacy for mayor of Baguio City in the last
May 11, 1992 elections by filing his certificate of candidacy on March 23, 1992.

Petitioner Roberto Ortega (GR No. 105384), on other hand, also filed his certificate of candidacy for
the same office on March 25, 1992.

Shortly after petitioner Labo filed his certificate of candidacy, petitioner Ortega filed on March 26,
1992, a disqualification proceeding against Labo before the Commission on Elections (Comelec),
docketed as SPA No. 92-029, seeking to cancel Labo's certificate of candidacy on the ground that
Labo made a false representation when he stated therein that he (Labo) is a "natural-born" citizen of
the Philippines.

Summons in the disqualification case was issued by the Comelec on March 27, 1992 to petitioner
Labo followed by a telegram dated April 1, 1992, requiring him to file his Answer within three (3) non-
extendible days but the latter failed to respond.

On April 15, 1992, Ortega filed a motion to declare Labo in default for failure to file his Answer.

On April 24, 1992, the Comelec issued another order directing the Election Registrar of Baguio City
to personally deliver the summons. On May 4, 1992, the disqualification case was set for reception
of evidence. At the said hearing, Ortega presented the decision of this Court in Labo v. Commission
on Elections (176 SCRA 1 [1989]) declaring Labo not a citizen of the Philippines. Labo, on the other
hand, though represented by counsel, did not present any evidence. It was only on May 5, 1992 that
petitioner submitted his Answer claiming Filipino citizenship.

On May 9, 1992, respondent Comelec issued the assailed resolution, the dispositive portion of which
reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby

resolves, to grant the petition; respondent's (Labo's) certificate of candidacy is
hereby DENIED due course and ordered CANCELLED; the City Election Registrar of
Baguio City is hereby directed to delete the name of the respondent (Labo) from the
list of candidates for City Mayor of Baguio City. (Rollo, pp. 47-48; GR No. 105111)
On the same date, Labo filed a motion to stay implementation of said resolution until after he shall
have raised the matter before this Court.

On May 10, 1992, respondent Comelec issued an Order which reads:

Acting on the "Urgent Ex-Parte Motion for Clarification", filed by respondent (Labo)
on May 9, 1992, the Commission resolves that the decision promulgated on May 9,
1992 disqualifying respondent Ramon L. Labo, Jr., shall become final and executory
only after five (5) days from promulgation pursuant to Rule 18, Section 13, Paragraph
(b) of the Comelec Rules of Procedure.

Accordingly, respondent (Labo) may still continue to be voted upon as candidate for
City Mayor of Baguio City on May 11, 1992 subject to the final outcome of this case
in the event the issue is elevated to the Supreme Court either on appeal or certiorari.
(Rollo, p. 53; GR No. 105111; emphasis supplied)

On May 13, 1992, respondent Comelec resolved, motu proprio to suspend the proclamation of Labo
in the event he wins in the elections for the City Mayor of Baguio. (Rollo, pp. 64-65; GR No. 105111)

On May 15, 1992, petitioner Labo filed the instant petition for review docketed as G.R. No. 105111
with prayer, among others, for the issuance of a temporary restraining order to set aside the May 9,
1992 resolution of respondent Comelec; to render judgment declaring him as a Filipino citizen; and
to direct respondent Comelec to proceed with his proclamation in the event he wins in the contested
elections.

On the same date, or on May 15, 1992 petitioner Ortega filed before the Comelec an urgent motion
for the implementation of its May 9, 1992 resolution cancelling Labo's certificate of candidacy.

After an exchange of pleadings, respondent Comelec, in its resolution dated May 26, 1992, denied
Ortega's motion in view of the pending case (G.R. No. 105111) earlier filed by Labo of the same
nature before this Court.

On June 1, 1992, Ortega filed a petition for mandamus docketed as G.R. No. 105384 praying for the
implementation of the Comelec's May 9, 1992 resolution.

Petitioner Ortega argues that respondent Comelec committed grave abuse of discretion when it
refused to implement its May 9, 1992 resolution notwithstanding the fact that said resolution
disqualifying Ramon Labo has already become final and executory.

After the parties have submitted their respective pleadings, the Court, on June 16, 1992, Resolved to
consider the case submitted for decision.

I. GR No. 105111

In essence, it is the contention of petitioner Labo that he is a Filipino citizen. Alleging lack of trial on
the merits as well as the lack of opportunity to be heard in Labo v. Commission on Elections (supra),
it is the submission of petitioner that he can prove his Filipino citizenship.

Petitioner cites the 1980 US case of Vance v. Terrazas (444 US 252), wherein it was held that in
proving expatriation, an expatriating act an intent to relinquish citizenship must be proved by a
preponderance of evidence.
Petitioner contends that no finding was made either by the Commission on Immigration or the
Comelec as regards his specific intent to renounce his Philippine citizenship.

Petitioner also faults the Comelec for the supposed abbreviated proceedings in SPA No. 92-029
which denied him adequate opportunity to present a full-dress presentation of his case. Thus: a) only
one (1) day was set for hearing of the case, i.e., May 4, 1992; b) two days later, May 6, 1992 the
hearing was set; c) instead of holding a hearing, the Comelec issued the questioned resolution on
May 9, 1992.

If only to refresh the mind of petitioner Labo, as well as that of his counsel, records disclose that
summons were issued by respondent Comelec as early as March 27, 1992 followed by a telegram
on April 1, 1992. But petitioner chose to ignore the same. Came April 15, 1992, petitioner Ortega
filed a motion to declare petitioner Labo in default. Over-extending him (Labo) the benefit of due
process, respondent Comelec issued another order dated April 24, 1992, this time directing the
Acting City Election Registrar of Baguio to personally serve the summons. The alleged delay in the
resolution of SPA No. 92-029 can only be attributed to petitioner Labo and no one else. Thus, the
respondent Comelec in its resolution dated May 9, 1992 stated:

On May 4, 1992, the Acting Regional Election Registrar called this case for reception
of evidence. Surprisingly, while as of that date respondent had not yet filed his
Answer, a lawyer appeared for him.

The petitioner (Ortega) presented the certificate of candidacy of respondent Ramon

L. Labo, Jr., which contained in item 9 thereof the verified statement that respondent
is a "natural-born" Filipino citizen. To prove that respondent is not a Filipino citizen,
petitioner submitted the decision of the Supreme Court in "Ramon L. Labo, Jr.,
petitioner, v. Comelec, et al.," GR No. 86564, August 1, 1989, the dispositive portion
of which states:

WHEREFORE, petitioner Ramon J. (sic) Labo, Jr. is hereby declared

NOT a citizen of the Philippines and therefore DISQUALIFIED from
continuing to serve as Mayor of Baguio City. He is ordered to
VACATE his office and surrender the same to the Vice-Mayor of
Baguio City once this decision becomes final and executory.

No evidence was adduced for the respondent as in fact he had no Answer as of the
hearing.

On May 5, 1992, respondent (Labo) filed his verified Answer, insisting that he is a
Filipino citizen and continue to maintain and preserve his Filipino citizenship; that he
does not hold an Australian citizenship; that the doctrine of res judicata does not
apply in citizenship; and that "existing facts support his continuous maintenance and
holding of Philippine citizenship" and "supervening events now preclude the
application of the ruling in the Labo v. Comelec case and the respondent (Labo) now
hold and enjoys Philippine citizenship.

No evidence has been offered by respondent to show what these existing facts and
supervening events are to preclude the application of the Labo decision. (emphasis
supplied)

The Commission is bound by the final declaration that respondent is not a Filipino
citizen. Consequently, respondent's verified statement in his certificate of candidacy
 that he is a "natural-born" Filipino citizen is a false material representation." (Rollo,
pp. 45-48; GR No. 105111)

Up to this moment, petitioner Labo still failed to submit a scintilla of proof to shore his claim before
this Court that he has indeed reacquired his Philippine citizenship.

Instead, petitioner relies in the US case of Vance v. Terrazas (supra). Suffice it to state that
petitioner has already pleaded Vance in his motion for reconsideration in Labo v.
Comelec (supra; Rollo, p. 375). Having been previously passed upon, the Court sees no pressing
need to re-examine the same and make a lengthy dissertation thereon.

At any rate, the fact remains that he has not submitted in the instant case any evidence, if there be
any, to prove his reacquisition of Philippine citizenship either before this Court or the Comelec. On
this score alone, We find no grave abuse of discretion committed by respondent Comelec in
cancelling his (Labo's) certificate of candidacy and declaring that he is NOT a Filipino citizen
pursuant to our ruling in the 1989 case of Labo v. Comelec (supra).

Petitioner Labo claims, however, that Sec. 722 of the Omnibus Election Code "operates as a
legislatively mandated special repatriation proceeding" and that it allows his proclamation as the
winning candidate since the resolution disqualifying him was not yet final at the time the election was
held.

The Court finds petitioner Labo's strained argument quixotic and untenable. In the first place, Sec.
72 of the Omnibus Election Code has already been repealed by Sec. 6 of RA No. 6646, to wit:

Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or the Commission shall continue with
the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his guilt
is strong. (emphasis supplied)

A perusal of the above provision would readily disclose that the Comelec can legally suspend the
proclamation of petitioner Labo, his reception of the winning number of votes notwithstanding,
especially so where, as in this case. Labo failed to present any evidence before the Comelec to
support his claim of reacquisition of Philippine citizenship.

Furthermore, we need only to reiterate what we have stated in Labo v. Comelec (supra), viz.,:

Under CA No. 63, as amended by P.D. No. 725, Philippine citizenship may be
reacquired by a direct act of Congress, by naturalization, or by repatriation. It does
not appear in the record, nor does the petitioner claim, that he has reacquired
Philippine citizenship by any of these methods. He does not point to any judicial
decree of naturalization or to any statute directly conferring Philippine citizenship
upon him. . . .

Petitioner Labo's status has not changed in the case at bar. To reiterate, he (Labo) was disqualified
as a candidate for being an alien. His election does not automatically restore his Philippine
citizenship, the possession of which is an indispensable requirement for holding public office (Sec.
39, Local Government Code).

Still, petitioner takes pains in raising a new argument not litigated before the respondent Comelec.
Petitioner claims that he has reacquired his Filipino citizenship by citing his application for
reacquisition of Philippine citizenship filed before the Office of the Solicitor General pursuant to PD
725 and Letter of Instruction No. 2703 (Rollo, pp. 116-119; G.R. No. 105111).

To date, however, and despite favorable recommendation by the Solicitor General, the Special
Committee on Naturalization had yet acted upon said application for repatriation. Indeed, such fact is
even admitted petitioner. In the absence of any official action or approval by the proper authorities, a
mere application for repratriation, does not, and cannot, amount to an automatic reacquisition of the
applicant's Philippine citizenship.

II. GR No. 105384

Petitioner Ortega submits that since this Court did not issue a temporary restraining order as regards
the May 9, 1992 resolution of respondent Comelec cancelling Labo's certificate of candidacy, said
resolution has already become final and executory. Ortega further posits the view that as a result of
such finality, the candidate receiving the next highest number of votes should be declared Mayor of
Baguio City.

We agree with Ortega's first proposition.

At the time petitioner Labo filed his petition (GR No. 105111) on May 15, 1992, the May 9, 1992
resolution of respondent Comelec cancelling his (Labo's) certificate of candidacy had already
become final and executory a day earlier, or on May 14, 1992, said resolution having been received
by petitioner Labo on the same day it was promulgated, i.e., May 9, 1992 and in the interim no
restraining order was issued by this Court.

Thus, Sec. 78 of the Omnibus Election Code provides:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy —

xxx xxx xxx

(e) The decision, order, or ruling of the Commission shall, after five (5) days from
receipt of a copy thereof by the parties, be final and executory unless stayed by the
Supreme Court. (emphasis supplied)

A similar provision is also found in Sec. 3, Rule 39 of the Comelec Rules of procedure, to wit:

Sec. 3. Decisions final after five days. — Decisions in

pre-proclamation cases and petitions to deny due course to or cancel certificates of
candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate,
and to postpone or suspend elections shall become final and executory after the
lapse of five (5) days from their promulgation, unless restrained by the Supreme
Court. (emphasis supplied)
The resolution cancelling Labo's certificate of candidacy on the ground that he is not a Filipino citizen
having acquired finality on May 14, 1992 constrains Us to rule against his proclamation as Mayor of
Baguio City.

To begin with, one of the qualifications of an elective official is that he must be a citizen of the
Philippines. Thus, the Local Government Code provides:

Sec. 39. Qualifications. — (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in
the case of a member of the sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, the district where he intends to be elected; a resident therein for
at least one (1) year immediately preceding the day of the election; and able to read
and write Filipino or any other local language or dialect. (emphasis supplied)

Undoubtedly, petitioner Labo, not being a Filipino citizen, lacks the fundamental qualification for the
contested office. Philippine citizenship is an indispensable requirement for holding an elective office.
As mandated by law: "An elective local official must be a citizen of the Philippines."

The issue here is citizenship and/or Labo's alienage — the very essence which strikes at the very
core of petitioner Labo's qualification to assume the contested office, he being an alien and not a
Filipino citizen. The fact that he was elected by the majority of the electorate is of no moment. As we
have held in Frivaldo v. Commission on Elections(174 SCRA 245 [1989]):

. . . The fact that he was elected by the people of Sorsogon does not excuse this
patent violation of the salutary rule limiting public office and employment only to the
citizens of this country. The qualifications prescribed for elective office cannot be
erased by the electorate alone. The will of the people as expressed through the ballot
cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this
case, that the candidate was qualified. Obviously, this rule requires strict application
when the deficiency is lack of citizenship. If a person seeks to serve in the Republic
of the Philippines, he must owe his total loyalty to this country only, abjuring and
renouncing all fealty and fidelity to any other state.

This brings us to the second issue raised by petitioner Ortega, i.e., whether the disqualification of
petitioner Labo entitles the candidate (Ortega) receiving the next highest number of votes to be
proclaimed as the winning candidate for mayor of Baguio City.

We hold in the negative. The disqualification of petitioner Labo does not necessarily entitle petitioner
Ortega as the candidate with the next highest number of votes to proclamation as the Mayor of
Baguio City.

We make mention of petitioner Ortega because in his petition, he alleges that:

. . . the May 11, 1992 elections were held with both herein petitioner (Roberto
Ortega) and respondent LABO having been voted for the position of Mayor and
unofficial results indicate that if the name of respondent LABO were deleted from the
list of candidates, herein petitioner (Ortega) will be entitled to be proclaimed as
Mayor-elect of Baguio City. (Rollo, p. 7, GR No. 105384; emphasis supplied)

and further prays this Court "to proclaim as the Mayor-elect of Baguio City the candidate who may
have garnered the most number of votes after the exclusion of the name of respondent candidate
LABO." (Rollo, p. 15, Ibid.) Implicit, therefore, is petitioner Ortega's desire to be proclaimed Mayor-
elect of Baguio City.

As discussed hereunder, however, the Court finds Ortega's prayer devoid of merit.

While Ortega may have garnered the second highest number of votes for the office of city mayor, the
fact remains that he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly
voted by the electorate for the office of mayor in the belief that he was then qualified to serve the
people of Baguio City and his subsequent disqualification does not make respondent Ortega the
mayor-elect. This is the import of the recent case of Abella v. Comelec (201 SCRA 253 [1991]),
wherein we held that:

While it is true that SPC No. 88-546 was originally a petition to deny due course to
the certificate of candidacy of Larrazabal and was filed before Larrazabal could be
proclaimed, the fact remains that the local elections of Feb. 1, 1988 in the province of
Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters of
the province voted for her in the sincere belief that she was a qualified candidate for
the position of governor. Her votes was counted and she obtained the highest
number of votes. The net effect is that petitioner lost in the election. He was
repudiated by the electorate. . . . What matters is that in the event a candidate for an
elected position who is voted for and who obtains the highest number of votes is
disqualified for not possessing the eligibility requirements at the time of the election
as provided by law, the candidate who obtains the second highest number of votes
for the same position cannot assume the vacated position. (emphasis supplied)

Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to depart
therefrom. Like Abella, petitioner Ortega lost in the election. He was repudiated by the electorate. He
was obviously not the choice of the people of Baguio City.

Thus, while respondent Ortega (GR No. 105111) originally filed a disqualification case with the
Comelec (docketed as SPA-92-029) seeking to deny due course to petitioner's (Labo's) candidacy,
the same did not deter the people of Baguio City from voting for petitioner Labo, who, by then, was
allowed by the respondent Comelec to be voted upon, the resolution for his disqualification having
yet to attain the degree of finality (Sec. 78. Omnibus Election Code).

And in the earlier case of Labo v. Comelec (supra), We held:

Finally, there is the question of whether or not the private respondent, who filed
the quo warrantopetition, can replace the petitioner as mayor. He cannot. The simple
reason is that as he obtained only the second highest number of votes in the
election, he was obviously not the choice of the people of Baguio City.

The latest ruling of the Court in this issue is Santos v. Commission on Election, (137
SCRA 740) decided in 1985. In that case, the candidate who placed second was
proclaimed elected after the votes for his winning rival, who was disqualified as a
turncoat and considered a non-candidate, were all disregarded as stray. In effect, the
second placer won by default. That decision was supported by eight members of the
Court then (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De
la Fuente, Alampay, and Aquino JJ., concurring) with three dissenting (Teehankee,
acting C.J., Abad Santos and Melencio-Herrera) and another two reserving their
votes (Plana and Gutierrez, Jr.). One was on official leave (Fernando, C.J.)
 Re-examining that decision, the Court finds, and so holds, that it should be reversed
in favor of the earlier case of Geronimo v. Santos (136 SCRA 435), which represents
the more logical and democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio vs. Paredes (23 Phil. 238) was supported by ten
members of the Court (Gutierrez, Jr., J., ponente, with Teehankee, Abad Santos,
Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ.,
concurring), without any dissent, . . . . There the Court held:

. . . it would be extremely repugnant to the basic concept of the

constitutionally guaranteed right to suffrage if a candidate who has
not acquired the majority or plurality of votes is proclaimed a winner
and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they did not
choose him.

Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election
for that office, and it is a fundamental idea in all republican forms of
government that no one can be declared elected and no measure can
be declared carried unless he or it receives a majority or plurality of
the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676)

The fact that a candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which
he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the
winner of the elective office. The votes cast for a dead, disqualified,
or non-eligible person may be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which
clearly asserts a contrary political and legislative policy on the matter,
if the votes were cast in the sincere belief that that candidate was
alive, qualified, or eligible, they should not be treated as stray, void or
meaningless.

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the
eligible candidate receiving the next highest number of votes to be declared elected. A minority or
defeated candidate cannot be deemed elected to the office.

Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v. Giles, 52
Am. Dec. 149).

It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for
the disqualified candidate should, in effect, be considered null and void. This would amount to
disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the
people of Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their
franchise, and in the honest belief that Labo was then qualified to be the person to whom they would
entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be
disqualified and cannot assume the office.

Whether or not the candidate whom the majority voted for can or cannot be installed, under no
circumstances can a minority or defeated candidate be deemed elected to the office. Surely, the
12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for
petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111).

The rule would have been different if the electorate fully aware in fact and in law of a candidate's
disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast
their votes in favor of the ineligible candidate. In such case, the electorate may be said to have
waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing
away their votes, in which case, the eligible candidate obtaining the next higher number of votes
may be deemed elected.

But this is not the situation obtaining in the instant dispute. It has not been shown, and none was
alleged, that petitioner Labo was notoriously known as an ineligible candidate, much less the
electorate as having known of such fact. On the contrary, petitioner Labo was even allowed by no
less than the Comelec itself in its resolution dated May 10, 1992 to be voted for the office of the city
mayor as its resolution dated May 9, 1992 denying due course to petitioner Labo's certificate of
candidacy had not yet become final and subject to the final outcome of this case.

As aforesaid, the ineligibility of a candidate receiving majority votes does not entitle the candidate
receiving the next highest number of votes to be declared elected. Ortega failed to satisfy the
necessary requisite of winning the election either by a majority or mere plurality of votes sufficient to
elevate him in public office as mayor of Baguio City. Having lost in the election for mayor, petitioner
Ortega was obviously not the choice of the people of Baguio City.

As a consequence of petitioners' ineligibility, a permanent vacancy in the contested office has

occurred. This should now be filled by the vice-mayor, in accordance with Sec. 44 of the Local
Government Code, to wit:

Chapter 2. Vacancies and Succession

Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor
and Vice-Mayor. — (a) If a permanent vacancy occurs in the office of the governor
or mayor, the vice-governor or the vice-mayor concerned shall become the governor
or mayor. . . . (emphasis supplied)

WHEREFORE, the instant petitions are DISMISSED for lack of merit. Petitioners both being
ineligible for the Office of the City Mayor of Baguio City and in view of the vacancy created in said
office, the vice-mayor elect of said city in the May 11, 1992 elections is hereby declared Mayor of
Baguio City after proclamation by the City Board of Canvassers. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Paras, Feliciano, Padilla, Griño-Aquino, Medialdea, Regalado, Davide, Jr.,
Romero, Nocon and Bellosillo, JJ., concur.

Separate Opinions
GUTIERREZ, JR., J.: concurring and dissenting

There is no need for me to discuss Mayor Ramon L. Labo, Jr.'s reacquisition of Philippine
citizenship. In the first case brought to us, Labo, Jr. v. COMELEC, 176 SCRA 1 [1989], I dissented
from the resolution denying his motion for reconsideration.

It is my view that since Mayor Labo never validly acquired Australian citizenship, he never lost his
Philippine citizenship. His oath of allegiance to Australia was null and void because he was not
qualified to be an Australian citizen. This is clear from the certification of Australia's Embassy
officials. To me, a null and void act cannot have the positive and serious effect of stripping a Filipino
of his natural-born citizenship.

Labo's taking an oath as citizen of a foreign country was based on his marriage to a citizen of that
country. It turns out, however, that Labo's marriage was bigamous and void because his Australian
wife had an existing valid marriage when she tied the knot with him. Not being married to her, Labo
could not become an Australian. Not being qualified to become an Australian citizen, his oath of
allegiance to that country was meaningless act. It should not deprive him of his Philippine
citizenship. I cannot believe that Mayor Labo gave up his citizenship in order to acquire a stateless
status.

I, however, concur in the Court's reiteration of the rule that it is the

vice-mayor elect who succeeds the disqualified mayor-elect and not the losing candidate for mayor.

I have to be consistent with my ponencia in Geronima v. Santos, 136 SCRA 435 [1985].
The Geronimo ruling is even more applicable to this case because on May 11, 1992, the day of the
elections, Labo was not yet disqualified. He was allowed to vote and to be voted for. The COMELEC
decision disqualifying him became final and executory only on May 14, 1992. In the meantime, the
citizens of Baguio had already stated who was their choice for Mayor. He had already been elected.

I would like to repeat some observations made in my dissent in the first Labo case:

xxx xxx xxx

I agree with the Court that the citizen of the Philippines must take pride in his status
as such and cherish this priceless gift that, out of more than a hundred other
nationalities, God has seen fit to grant it to him. We love the Philippines; it is the land
of our birth; it is the home of our people. The emotions kindled by love of country
cannot be described.

But precisely because of the inestimable value of Philippine citizenship, we should

never declare a Filipino as having lost his citizenship except upon the most
compelling consideration.

Let us be realistic. There must be over two million Filipinos who are scattered all over
the world desperately trying to earn a living. They endure loneliness and separation
from loved ones, bear with racial discrimination, suffer rape and other forms of
abuse, brave the perils of foreign cultures, and put up with the failings of their own
Government in looking after their welfare. Being in foreign countries, most of them
 yearn for their homeland and realize what they have lost. Only now do they
appreciate what they used to take for granted.

If some of them may have been forced by circumstances to seemingly renounce their
citizenship, let us not summarily condemn them.

xxx xxx xxx

Citizenship is a political and civil right no less important than freedom of speech, liberty of abode,
right against unreasonable searches and seizures, and other basic guarantees of the Bill of Rights.

In deciding cases involving citizenship, I believe that the presumptions should be in favor of its
retention and against its loss. We apply this principle to cases involving civil liberties. We should also
apply it to a sincere invocation of Philippine citizenship. We should not lightly strip a person of his
natural born status but should accord to him every possible interpretation consistent with the
exercise of a right that was vested in him from birth.

In view of the foregoing, I vote to GRANT the petition and to order the proclamation and assumption
of office of Baguio Mayor Ramon Labo, Jr.

Separate Opinions

GUTIERREZ, JR., J.: concurring and dissenting

There is no need for me to discuss Mayor Ramon L. Labo, Jr.'s reacquisition of Philippine
citizenship. In the first case brought to us, Labo, Jr. v. COMELEC, 176 SCRA 1 [1989], I dissented
from the resolution denying his motion for reconsideration.

It is my view that since Mayor Labo never validly acquired Australian citizenship, he never lost his
Philippine citizenship. His oath of allegiance to Australia was null and void because he was not
qualified to be an Australian citizen. This is clear from the certification of Australia's Embassy
officials. To me, a null and void act cannot have the positive and serious effect of stripping a Filipino
of his natural-born citizenship.

Labo's taking an oath as citizen of a foreign country was based on his marriage to a citizen of that
country. It turns out, however, that Labo's marriage was bigamous and void because his Australian
wife had an existing valid marriage when she tied the knot with him. Not being married to her, Labo
could not become an Australian. Not being qualified to become an Australian citizen, his oath of
allegiance to that country was meaningless act. It should not deprive him of his Philippine
citizenship. I cannot believe that Mayor Labo gave up his citizenship in order to acquire a stateless
status.

I, however, concur in the Court's reiteration of the rule that it is the

vice-mayor elect who succeeds the disqualified mayor-elect and not the losing candidate for mayor.

I have to be consistent with my ponencia in Geronima v. Santos, 136 SCRA 435 [1985].
The Geronimo ruling is even more applicable to this case because on May 11, 1992, the day of the
elections, Labo was not yet disqualified. He was allowed to vote and to be voted for. The COMELEC
decision disqualifying him became final and executory only on May 14, 1992. In the meantime, the
citizens of Baguio had already stated who was their choice for Mayor. He had already been elected.

I would like to repeat some observations made in my dissent in the first Labo case:

xxx xxx xxx

I agree with the Court that the citizen of the Philippines must take pride in his status
as such and cherish this priceless gift that, out of more than a hundred other
nationalities, God has seen fit to grant it to him. We love the Philippines; it is the land
of our birth; it is the home of our people. The emotions kindled by love of country
cannot be described.

But precisely because of the inestimable value of Philippine citizenship, we should

never declare a Filipino as having lost his citizenship except upon the most
compelling consideration.

Let us be realistic. There must be over two million Filipinos who are scattered all over
the world desperately trying to earn a living. They endure loneliness and separation
from loved ones, bear with racial discrimination, suffer rape and other forms of
abuse, brave the perils of foreign cultures, and put up with the failings of their own
Government in looking after their welfare. Being in foreign countries, most of them
yearn for their homeland and realize what they have lost. Only now do they
appreciate what they used to take for granted.

If some of them may have been forced by circumstances to seemingly renounce their
citizenship, let us not summarily condemn them.

xxx xxx xxx

Citizenship is a political and civil right no less important than freedom of speech, liberty of abode,
right against unreasonable searches and seizures, and other basic guarantees of the Bill of Rights.

In deciding cases involving citizenship, I believe that the presumptions should be in favor of its
retention and against its loss. We apply this principle to cases involving civil liberties. We should also
apply it to a sincere invocation of Philippine citizenship. We should not lightly strip a person of his
natural born status but should accord to him every possible interpretation consistent with the
exercise of a right that was vested in him from birth.

In view of the foregoing, I vote to GRANT the petition and to order the proclamation and assumption
of office of Baguio Mayor Ramon Labo, Jr.

Footnotes

1 The first time was in Ramon L. Labo, Jr., v. Comelec (176 SCRA 1 [1989])

2 Sec. 72. Effects of disqualification cases and priority. — The Commission and the
courts shall give priority to cases of disqualification by reason of violation of this Act
to the end that a final decision shall be rendered not later than seven days before the
election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any
reason, a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections shall not prevent his
proclamation and assumption to office.

3 PD 725 authorizes the Special Committee on Naturalization (created under LOI

270) to accept and process petitions for repatriation, as follows: (1) Filipino women
who lost their Philippine citizenship by marriage to aliens: and (2) natural born
Filipinos who have lost their Philippine citizenship may reacquire Philippine
citizenship through repratriation by applying with the Special Committee on
Naturalization by applying with the Special Committee on Naturalization created by
Letter of Instruction No. 270, and, if their applications are approved, taking the
necessary oath of allegiance to the Republic of the Philippines, after which they shall
be deemed to have reacquired Philippine citizenship. The Commission on
Immigration shall thereupon cancel certificate of registration.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

BAR MATTER No. 914 October 1, 1999

RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,

vs.

VICENTE D. CHING, applicant.

RESOLUTION

KAPUNAN, J.:

Can a legitimate child born under the 1935 Constitution of a Filipino mother and an alien
father validly elect Philippine citizenship fourteen (14) years after he has reached the
age of majority? This is the question sought to be resolved in the present case involving
the application for admission to the Philippine Bar of Vicente D. Ching.

The facts of this case are as follows:

Vicente D. Ching, the legitimate son of the spouses Tat Ching, a Chinese citizen, and
Prescila A. Dulay, a Filipino, was born in Francia West, Tubao, La Union on 11 April
1964. Since his birth, Ching has resided in the Philippines.

On 17 July 1998, Ching, after having completed a Bachelor of Laws course at the St.
Louis University in Baguio City, filed an application to take the 1998 Bar Examinations.
In a Resolution of this Court, dated 1 September 1998, he was allowed to take the Bar
Examinations, subject to the condition that he must submit to the Court proof of his
Philippine citizenship.

In compliance with the above resolution, Ching submitted on 18 November 1998, the
following documents:
 1. Certification, dated 9 June 1986, issued by the Board of Accountancy of
the Professional Regulations Commission showing that Ching is a certified
public accountant;

2. Voter Certification, dated 14 June 1997, issued by Elizabeth B. Cerezo,

Election Officer of the Commission on Elections (COMELEC) in Tubao La
Union showing that Ching is a registered voter of the said place; and

3. Certification, dated 12 October 1998, also issued by Elizabeth B.

Cerezo, showing that Ching was elected as a member of the Sangguniang
Bayan of Tubao, La Union during the 12 May 1992 synchronized
elections.

On 5 April 1999, the results of the 1998 Bar Examinations were released and Ching was
one of the successful Bar examinees. The oath-taking of the successful Bar examinees
was scheduled on 5 May 1999. However, because of the questionable status of Ching's
citizenship, he was not allowed to take his oath. Pursuant to the resolution of this Court,
dated 20 April 1999, he was required to submit further proof of his citizenship. In the
same resolution, the Office of the Solicitor General (OSG) was required to file a
comment on Ching's petition for admission to the bar and on the documents evidencing
his Philippine citizenship.

The OSG filed its comment on 8 July 1999, stating that Ching, being the "legitimate
child of a Chinese father and a Filipino mother born under the 1935 Constitution was a
Chinese citizen and continued to be so, unless upon reaching the age of majority he
elected Philippine citizenship" 1 in strict compliance with the provisions of
Commonwealth Act No. 625 entitled "An Act Providing for the Manner in which the
Option to Elect Philippine Citizenship shall be Declared by a Person Whose Mother is a
Filipino Citizen." The OSG adds that "(w)hat he acquired at best was only an inchoate
Philippine citizenship which he could perfect by election upon reaching the age of
majority." 2 In this regard, the OSG clarifies that "two (2) conditions must concur in order
that the election of Philippine citizenship may be effective, namely: (a) the mother of the
person making the election must be a citizen of the Philippines; and (b) said election
must be made upon reaching the age of majority." 3 The OSG then explains the
meaning of the phrase "upon reaching the age of majority:"

The clause "upon reaching the age of majority" has been construed to
mean a reasonable time after reaching the age of majority which had been
interpreted by the Secretary of Justice to be three (3) years
(VELAYO, supra at p. 51 citing Op., Sec. of Justice No. 70, s. 1940, Feb.
27, 1940). Said period may be extended under certain circumstances, as
when a (sic) person concerned has always considered himself a Filipino
(ibid., citing Op. Nos. 355 and 422, s. 1955; 3, 12, 46, 86 and 97, s. 1953).
But in Cuenco, it was held that an election done after over seven (7) years
was not made within a reasonable time.
In conclusion, the OSG points out that Ching has not formally elected Philippine
citizenship and, if ever he does, it would already be beyond the "reasonable time"
allowed by present jurisprudence. However, due to the peculiar circumstances
surrounding Ching's case, the OSG recommends the relaxation of the standing rule on
the construction of the phrase "reasonable period" and the allowance of Ching to elect
Philippine citizenship in accordance with C.A. No. 625 prior to taking his oath as a
member of the Philippine Bar.

On 27 July 1999, Ching filed a Manifestation, attaching therewith his Affidavit of Election
of Philippine Citizenship and his Oath of Allegiance, both dated 15 July 1999. In his
Manifestation, Ching states:

1. I have always considered myself as a Filipino;

2. I was registered as a Filipino and consistently declared myself as one in

my school records and other official documents;

3. I am practicing a profession (Certified Public Accountant) reserved for

Filipino citizens;

4. I participated in electoral process[es] since the time I was eligible to

vote;

5. I had served the people of Tubao, La Union as a member of the

Sangguniang Bayan from 1992 to 1995;

6. I elected Philippine citizenship on July 15, 1999 in accordance with

Commonwealth Act No. 625;

7. My election was expressed in a statement signed and sworn to by me

before a notary public;

8. I accompanied my election of Philippine citizenship with the oath of

allegiance to the Constitution and the Government of the Philippines;

9. I filed my election of Philippine citizenship and my oath of allegiance to

(sic) the Civil Registrar of Tubao La Union, and

10. I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.

Since Ching has already elected Philippine citizenship on 15 July 1999, the question
raised is whether he has elected Philippine citizenship within a "reasonable time." In the
affirmative, whether his citizenship by election retroacted to the time he took the bar
examination.
When Ching was born in 1964, the governing charter was the 1935 Constitution. Under
Article IV, Section 1(3) of the 1935 Constitution, the citizenship of a legitimate child born
of a Filipino mother and an alien father followed the citizenship of the father, unless,
upon reaching the age of majority, the child elected Philippine citizenship. 4 This right to
elect Philippine citizenship was recognized in the 1973 Constitution when it provided
that "(t)hose who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five" are citizens of the
Philippines. 5 Likewise, this recognition by the 1973 Constitution was carried over to the
1987 Constitution which states that "(t)hose born before January 17, 1973 of Filipino
mothers, who elect Philippine citizenship upon reaching the age of majority" are
Philippine citizens. 6 It should be noted, however, that the 1973 and 1987 Constitutional
provisions on the election of Philippine citizenship should not be understood as having a
curative effect on any irregularity in the acquisition of citizenship for those covered by
the 1935 Constitution. 7 If the citizenship of a person was subject to challenge under the
old charter, it remains subject to challenge under the new charter even if the judicial
challenge had not been commenced before the effectivity of the new Constitution. 8

C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935
Constitution, prescribes the procedure that should be followed in order to make a valid
election of Philippine citizenship. Under Section 1 thereof, legitimate children born of
Filipino mothers may elect Philippine citizenship by expressing such intention "in a
statement to be signed and sworn to by the party concerned before any officer
authorized to administer oaths, and shall be filed with the nearest civil registry. The said
party shall accompany the aforesaid statement with the oath of allegiance to the
Constitution and the Government of the Philippines."

However, the 1935 Constitution and C.A. No. 625 did not prescribe a time period within
which the election of Philippine citizenship should be made. The 1935 Charter only
provides that the election should be made "upon reaching the age of majority." The age
of majority then commenced upon reaching twenty-one (21) years. 9 In the opinions of
the Secretary of Justice on cases involving the validity of election of Philippine
citizenship, this dilemma was resolved by basing the time period on the decisions of this
Court prior to the effectivity of the 1935 Constitution. In these decisions, the proper
period for electing Philippine citizenship was, in turn, based on the pronouncements of
the Department of State of the United States Government to the effect that the election
should be made within a "reasonable time" after attaining the age of majority. 10 The
phrase "reasonable time" has been interpreted to mean that the election should be
made within three (3) years from reaching the age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three (3)
year period is not an inflexible rule. We said:

It is true that this clause has been construed to mean a reasonable period
after reaching the age of majority, and that the Secretary of Justice has
ruled that three (3) years is the reasonable time to elect Philippine
citizenship under the constitutional provision adverted to above, which
 period may be extended under certain circumstances, as when the person
concerned has always considered himself a Filipino. 13

However, we cautioned in Cuenco that the extension of the option to elect Philippine
citizenship is not indefinite:

Regardless of the foregoing, petitioner was born on February 16, 1923. He

became of age on February 16, 1944. His election of citizenship was
made on May 15, 1951, when he was over twenty-eight (28) years of age,
or over seven (7) years after he had reached the age of majority. It is clear
that said election has not been made "upon reaching the age of
majority." 14

In the present case, Ching, having been born on 11 April 1964, was already thirty-five
(35) years old when he complied with the requirements of C.A. No. 625 on 15 June
1999, or over fourteen (14) years after he had reached the age of majority. Based on
the interpretation of the phrase "upon reaching the age of majority," Ching's election
was clearly beyond, by any reasonable yardstick, the allowable period within which to
exercise the privilege. It should be stated, in this connection, that the special
circumstances invoked by Ching, i.e., his continuous and uninterrupted stay in the
Philippines and his being a certified public accountant, a registered voter and a former
elected public official, cannot vest in him Philippine citizenship as the law specifically
lays down the requirements for acquisition of Philippine citizenship by election.

Definitely, the so-called special circumstances cannot constitute what Ching

erroneously labels as informal election of citizenship. Ching cannot find a refuge in the
case of In re: Florencio Mallare, 15 the pertinent portion of which reads:

And even assuming arguendo that Ana Mallare were (sic) legally married
to an alien, Esteban's exercise of the right of suffrage when he came of
age, constitutes a positive act of election of Philippine citizenship. It has
been established that Esteban Mallare was a registered voter as of April
14, 1928, and that as early as 1925 (when he was about 22 years old),
Esteban was already participating in the elections and campaigning for
certain candidate[s]. These acts are sufficient to show his preference for
Philippine citizenship. 16

Ching's reliance on Mallare is misplaced. The facts and circumstances obtaining therein
are very different from those in the present case, thus, negating its applicability. First,
Esteban Mallare was born before the effectivity of the 1935 Constitution and the
enactment of C.A. No. 625. Hence, the requirements and procedures prescribed under
the 1935 Constitution and C.A. No. 625 for electing Philippine citizenship would not be
applicable to him. Second, the ruling in Mallare was an obiter since, as correctly pointed
out by the OSG, it was not necessary for Esteban Mallare to elect Philippine citizenship
because he was already a Filipino, he being a natural child of a Filipino mother. In this
regard, the Court stated:
 Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore
himself a Filipino, and no other act would be necessary to confer on him
all the rights and privileges attached to Philippine citizenship (U.S. vs. Ong
Tianse, 29 Phil. 332; Santos Co vs. Government of the Philippine Islands,
42 Phil. 543, Serra vs. Republic, L-4223, May 12, 1952, Sy Quimsuan vs.
Republic, L-4693, Feb. 16, 1953; Pitallano vs. Republic, L-5111, June 28,
1954). Neither could any act be taken on the erroneous belief that he is a
non-filipino divest him of the citizenship privileges to which he is rightfully
entitled. 17

The ruling in Mallare was reiterated and further elaborated in Co vs. Electoral Tribunal
of the House of Representatives, 18 where we held:

We have jurisprudence that defines "election" as both a formal and an

informal process.

In the case of In re: Florencio Mallare (59 SCRA 45 [1974]), the Court held
that the exercise of the right of suffrage and the participation in election
exercises constitute a positive act of election of Philippine citizenship. In
the exact pronouncement of the Court, we held:

Esteban's exercise of the right of suffrage when he came of

age constitutes a positive act of Philippine citizenship. (p. 52:
emphasis supplied)

The private respondent did more than merely exercise his right of suffrage. He has
established his life here in the Philippines.

For those in the peculiar situation of the respondent who cannot be

excepted to have elected Philippine citizenship as they were already
citizens, we apply the In Re Mallare rule.

xxx xxx xxx

The filing of sworn statement or formal declaration is a requirement for

those who still have to elect citizenship. For those already Filipinos when
the time to elect came up, there are acts of deliberate choice which cannot
be less binding. Entering a profession open only to Filipinos, serving in
public office where citizenship is a qualification, voting during election
time, running for public office, and other categorical acts of similar nature
are themselves formal manifestations for these persons.

An election of Philippine citizenship presupposes that the person electing

is an alien. Or his status is doubtful because he is a national of two
countries. There is no doubt in this case about Mr. Ong's being a Filipino
when he turned twenty-one (21).
 We repeat that any election of Philippine citizenship on the part of the
private respondent would not only have been superfluous but it would also
have resulted in an absurdity. How can a Filipino citizen elect Philippine
citizenship? 19

The Court, like the OSG, is sympathetic with the plight of Ching. However, even if we
consider the special circumstances in the life of Ching like his having lived in the
Philippines all his life and his consistent belief that he is a Filipino, controlling statutes
and jurisprudence constrain us to disagree with the recommendation of the OSG.
Consequently, we hold that Ching failed to validly elect Philippine citizenship. The span
of fourteen (14) years that lapsed from the time he reached the age of majority until he
finally expressed his intention to elect Philippine citizenship is clearly way beyond the
contemplation of the requirement of electing "upon reaching the age of majority."
Moreover, Ching has offered no reason why he delayed his election of Philippine
citizenship. The prescribed procedure in electing Philippine citizenship is certainly not a
tedious and painstaking process. All that is required of the elector is to execute an
affidavit of election of Philippine citizenship and, thereafter, file the same with the
nearest civil registry. Ching's unreasonable and unexplained delay in making his
election cannot be simply glossed over.

Philippine citizenship can never be treated like a commodity that can be claimed when
needed and suppressed when convenient. 20 One who is privileged to elect Philippine
citizenship has only an inchoate right to such citizenship. As such, he should avail of the
right with fervor, enthusiasm and promptitude. Sadly, in this case, Ching slept on his
opportunity to elect Philippine citizenship and, as a result. this golden privilege slipped
away from his grasp.

IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D. Ching's

application for admission to the Philippine Bar.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Footnotes

1 Citing Cu vs. Republic of the Philippines, 89 Phil. 473, 476 (1951).

2 Citing CRUZ, Constitutional Law, 1991 Ed., p. 359.

3 Citing Cuenco. vs. Secretary of Justice, 5 SCRA 108, 110 (1962).

4 Sec. 1, Art. IV of the 1935 Constitution reads:

Sec. 1. The following are citizens of the Philippines:

 (1) Those who are citizens of the Philippine
Islands at the time of the adoption of the
Constitution;

(2) Those born in the Philippine Islands of

foreign parents who, before the adoption of this
Constitution, had been elected to public office;

(3) Those whose fathers are citizens of the

Philippines;

(4) Those whose mothers are citizens of the

Philippines, and, upon reaching the age of
majority, elect Philippine citizenship;

(5) Those who are naturalized in accordance

with law.

5 Sec. 1(1), Article III, 1973 Constitution.

6 Sec. 1(3), Article IV, 1987 Constitution.

7 BERNAS, The Constitution of the Republic of the Philippines; First Ed.

(1987), p. 502.

8 Ibid., citing Convention Session of November 27, 1972 and noting that it
is also applicable to the 1987 Constitution.

9 Art. 402, Civil Code.

10 Lim Teco vs. Collector of Customs, 24 SCRA 84, 88 (1912).

11 Muñoz vs. Collector of Customs, 20 SCRA 494: 498 (1911); Lorenzo

vs. Collector of Customs, 15 SCRA 559, 592 (1910).

12 5 SCRA 108 (1962).

13 Id., at 110.

14 Id.

15 59 SCRA 45 (1974)

16 Id., at 52.

17 Id.
 18 199 SCRA 692 (1991).

19 Id., at 707-709 (Emphasis supplied).

20 Yu vs. Defensor-Santiago, 169 SCRA 364, 379 (1989).

G.R. No. 125793 August 29, 2006

JOEVANIE ARELLANO TABASA, Petitioner,

vs.
HON. COURT OF APPEALS, BUREAU OF IMMIGRATION and DEPORTATION and WILSON
SOLUREN, Respondents.

DECISION

VELASCO, JR., J.:

Citizenship is a priceless possession. Former U.S. Chief Justice Earl Warren fittingly emphasized its
crowning value when he wrote that "it is man’s basic right for it is nothing less than to have
rights." 1 When a person loses citizenship, therefore, the State sees to it that its reacquisition may
only be granted if the former citizen fully satisfies all conditions and complies with the applicable law.
Without doubt, repatriation is not to be granted simply based on the vagaries of the former Filipino
citizen.

The Case

The instant petition for review 2 under Rule 45 of the 1997 Rules of Civil Procedure contests the
denial by the Court of Appeals (CA) of the Petition for Habeas Corpus interposed by petitioner
Joevanie Arellano Tabasa from the Order of Summary Deportation issued by the Bureau of
Immigration and Deportation (BID) for his return to the United States.

The Facts

The facts as culled by the CA from the records show that petitioner Joevanie Arellano Tabasa was a
natural-born citizen of the Philippines. In 1968, 3 when petitioner was seven years old, 4 his father,
Rodolfo Tabasa, became a naturalized citizen 5 of the United States. By derivative naturalization
(citizenship derived from that of another as from a person who holds citizenship by virtue of
naturalization 6), petitioner also acquired American citizenship.

Petitioner arrived in the Philippines on August 3, 1995, and was admitted as a "balikbayan" for one
year. Thereafter, petitioner was arrested and detained by agent Wilson Soluren of the BID on May
23, 1996, pursuant to BID Mission Order No. LIV-96-72 in Baybay, Malay, Aklan; subsequently, he
was brought to the BID Detention Center in Manila.7

Petitioner was investigated by Special Prosecutor Atty. Edy D. Donato at the Law and Investigation
Division of the BID on May 28, 1996; and on the same day, Tabasa was accused of violating Section
8, Chapter 3, Title 1, Book 3 of the 1987 Administrative Code, in a charge sheet which alleged:

1. That on 3 August 1995, respondent (petitioner herein [Tabasa]) arrived in the Philippines and was
admitted as a balikbayan;

2. That in a letter dated 16 April 1996, Honorable Kevin Herbert, Consul General of [the] U.S.
Embassy, informed the Bureau that respondent’s Passport No. 053854189 issued on June 10, 1994
in San Francisco, California, U.S.A., had been revoked by the U.S. Department of State;
3. Hence, respondent [petitioner Tabasa] is now an undocumented and undesirable alien and may
be summarily deported pursuant to Law and Intelligence Instructions No. 53 issued by then
Commissioner Miriam Defensor Santiago to effect his deportation (Exhibit 3). 8

The pertinent portion of the Herbert letter is as follows:

The U.S. Department of State has revoked U.S. passport 053854189 issued on June 10, 1994 in
San Francisco, California under the name of Joevanie Arellano Tabasa, born on February 21, 1959
in the Philippines. Mr. Tabasa’s passport has been revoked because he is the subject of an
outstanding federal warrant of arrest issued on January 25, 1996 by the U.S. District Court for the
Northern District of California, for violation of Section 1073, "Unlawful Flight to Avoid Prosecution," of
Title 18 of the United States Code. He is charged with one count of a felon in possession of a
firearm, in violation of California Penal Code, Section 12021(A)(1), and one count of sexual battery,
in violation of California Penal Code, Section 243.4 (D). 9

The BID ordered petitioner’s deportation to his country of origin, the United States, on May 29, 1996,
in the following summary deportation order:

Records show that on 16 April 1996, Mr. Kevin F. Herbert, Consul General of the U.S. Embassy in
Manila, filed a request with the Bureau to apprehend and deport the abovenamed [sic] respondent
[petitioner Tabasa] on the ground that a standing warrant for several federal charges has been
issued against him, and that the respondent’s Passport No. 053854189 has been revoked.

By reason thereof, and on the strength of Mission Order No. LIV-96-72, Intelligence operatives
apprehended the respondent in Aklan on 23 May 1996.

In Schonemann vs. Commissioner Santiago, et al., (G.R. No. 81461 [sic, ‘81461’ should be ‘86461’],
30 May 1989), the Supreme Court ruled that if a foreign embassy cancels the passport of an alien,
or does not reissue a valid passport to him, the alien loses the privilege to remain in the country.
Further, under Office Memorandum Order No. 34 issued on 21 August 1989, summary deportation
proceedings lie where the passport of the alien has expired.

It is, thus, apparent that respondent has lost his privilege to remain in the country. 10

Petitioner filed before the CA a Petition for Habeas Corpus with Preliminary Injunction and/or
Temporary Restraining Order 11 on May 29, 1996, which was docketed as CA-G.R. SP No. 40771.
Tabasa alleged that he was not afforded due process; that no warrant of arrest for deportation may
be issued by immigration authorities before a final order of deportation is made; that no notice of the
cancellation of his passport was made by the U.S. Embassy; that he is entitled to admission or to a
change of his immigration status as a non-quota immigrant because he is married to a Filipino
citizen as provided in Section 13, paragraph (a) of the Philippine Immigration Act of 1940; and that
he was a natural-born citizen of the Philippines prior to his derivative naturalization when he was
seven years old due to the naturalization of his father, Rodolfo Tabasa, in 1968.

At the time Tabasa filed said petition, he was already 35 years old. 12

On May 30, 1996, the CA ordered the respondent Bureau to produce the person of the petitioner on
June 3, 1996 and show the cause of petitioner’s detention, and restrained the Bureau from
summarily deporting him. On June 3, 1996, the BID presented Tabasa before the CA; and on June
6, 1996, the CA granted both parties ten (10) days within which to file their memoranda, after which
the case would be considered submitted for decision. 13Meanwhile, the Commissioner of Immigration
granted the petitioner’s temporary release on bail on a PhP 20,000.00 cash bond. 14
However, on June 13, 1996, petitioner filed a Supplemental Petition alleging that he had acquired
Filipino citizenship by repatriation in accordance with Republic Act No. 8171 (RA 8171), and that
because he is now a Filipino citizen, he cannot be deported or detained by the respondent Bureau. 15

The Ruling of the Court of Appeals

The CA, in its August 7, 1996 Decision, 16 denied Tabasa’s petition on the ground that he had not
legally and successfully acquired––by repatriation––his Filipino citizenship as provided in RA 8171.
The court said that although he became an American citizen by derivative naturalization when his
father was naturalized in 1968, there is no evidence to show that he lost his Philippine citizenship
"on account of political or economic necessity," as explicitly provided in Section 1, RA 8171—the law
governing the repatriation of natural-born Filipinos who have lost their citizenship. The affidavit does
not state that political or economic necessity was the compelling reason for petitioner’s parents to
give up their Filipino citizenship in 1968. Moreover, the court a quo found that petitioner Tabasa did
not dispute the truth of the April 16, 1996 letter of the United States Consul General Kevin F. Herbert
or the various warrants issued for his arrest by the United States court. The court a quo noted that
after petitioner was ordered deported by the BID on May 29, 1996, he successively executed an
Affidavit of Repatriation on June 6, 1996 and took an oath of allegiance to the Republic of the
Philippines on June 13, 1996––more than ten months after his arrival in the country on August 3,
1995. The appellate court considered petitioner’s "repatriation" as a last ditch effort to avoid
deportation and prosecution in the United States. The appellate court concluded that his only reason
to want to reacquire Filipino citizenship is to avoid criminal prosecution in the United States of
America. The court a quo, therefore, ruled against Tabasa, whose petition is now before us.

The Issue

The only issue to be resolved is whether petitioner has validly reacquired Philippine citizenship
under RA 8171. If there is no valid repatriation, then he can be summarily deported for his being an
undocumented alien.

The Court’s Ruling

The Court finds no merit in this petition.

RA 8171, "An Act Providing for the Repatriation of Filipino Women Who Have Lost Their Philippine
Citizenship by Marriage to Aliens and of Natural-Born Filipinos," was enacted on October 23, 1995. It
provides for the repatriation of only two (2) classes of persons, viz:

Filipino women who have lost their Philippine citizenship by marriage to aliens and natural-born
Filipinos who have lost their Philippine citizenship, including their minor children, on account of
political or economic necessity, may reacquire Philippine citizenship through repatriation in the
manner provided in Section 4 of Commonwealth Act No. 63, as amended: Provided, That the
applicant is not a:

(1) Person opposed to organized government or affiliated with any association or group of persons
who uphold and teach doctrines opposing organized government;

(2) Person defending or teaching the necessity or propriety of violence, personal assault, or
association for the predominance of their ideas;

(3) Person convicted of crimes involving moral turpitude; or

(4) Person suffering from mental alienation or incurable contagious diseases. 17 (Emphasis supplied.)

Does petitioner Tabasa qualify as a natural-born Filipino who had lost his Philippine citizenship by
reason of political or economic necessity under RA 8171?

He does not.

Persons qualified for repatriation under RA 8171

To reiterate, the only persons entitled to repatriation under RA 8171 are the following:

a. Filipino women who lost their Philippine citizenship by marriage to aliens; and

b. Natural-born Filipinos including their minor children who lost their Philippine citizenship on account
of political or economic necessity.

Petitioner theorizes that he could be repatriated under RA 8171 because he is a child of a natural-
born Filipino, and that he lost his Philippine citizenship by derivative naturalization when he was still
a minor.

Petitioner overlooks the fact that the privilege of repatriation under RA 8171 is available only to
natural-born Filipinos who lost their citizenship on account of political or economic necessity, and to
the minor children of said natural-born Filipinos. This means that if a parent who had renounced his
Philippine citizenship due to political or economic reasons later decides to repatriate under RA 8171,
his repatriation will also benefit his minor children according to the law. This includes a situation
where a former Filipino subsequently had children while he was a naturalized citizen of a foreign
country. The repatriation of the former Filipino will allow him to recover his natural-born citizenship
and automatically vest Philippine citizenship on his children of jus sanguinis or blood
relationship: 18 the children acquire the citizenship of their parent(s) who are natural-born Filipinos.
To claim the benefit of RA 8171, however, the children must be of minor age at the time the petition
for repatriation is filed by the parent. This is so because a child does not have the legal capacity for
all acts of civil life much less the capacity to undertake a political act like the election of citizenship.
On their own, the minor children cannot apply for repatriation or naturalization separately from their
parents.

In the case at bar, there is no dispute that petitioner was a Filipino at birth. In 1968, while he was still
a minor, his father was naturalized as an American citizen; and by derivative naturalization,
petitioner acquired U.S. citizenship. Petitioner now wants us to believe that he is entitled to
automatic repatriation as a child of natural-born Filipinos who left the country due to political or
economic necessity. This is absurd. Petitioner was no longer a minor at the time of his "repatriation"
on June 13, 1996. The privilege under RA 8171 belongs to children who are of minor age at the time
of the filing of the petition for repatriation.

Neither can petitioner be a natural-born Filipino who left the country due to political or economic
necessity. Clearly, he lost his Philippine citizenship by operation of law and not due to political or
economic exigencies. It was his father who could have been motivated by economic or political
reasons in deciding to apply for naturalization. The decision was his parent’s and not his. The
privilege of repatriation under RA 8171 is extended directly to the natural-born Filipinos who could
prove that they acquired citizenship of a foreign country due to political and economic reasons, and
extended indirectly to the minor children at the time of repatriation.
In sum, petitioner is not qualified to avail himself of repatriation under RA 8171. However, he can
possibly reacquire Philippine citizenship by availing of the Citizenship Retention and Re-acquisition
Act of 2003 (Republic Act No. 9225) by simply taking an oath of allegiance to the Republic of the
Philippines.

Where to file a petition for repatriation pursuant to RA 8171

Even if we concede that petitioner Tabasa can avail of the benefit of RA 8171, still he failed to follow
the procedure for reacquisition of Philippine citizenship. He has to file his petition for repatriation with
the Special Committee on Naturalization (SCN), which was designated to process petitions for
repatriation pursuant to Administrative Order No. 285 (A.O. No. 285) dated August 22, 1996, to wit:

Section 1. Composition.—The composition of the Special Committee on Naturalization, with the

Solicitor General as Chairman, the Undersecretary of Foreign Affairs and the Director-General of the
National Intelligence Coordinating Agency, as members, shall remain as constituted.

Sec. 2. Procedure.—Any person desirous of repatriating or reacquiring Filipino citizenship pursuant

to R.A. No. 8171 shall file a petition with the Special Committee on Naturalization which shall
process the same. If their applications are approved[,] they shall take the necessary oath of
allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired
Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their
certificate of registration (emphasis supplied).

Sec. 3. Implementing Rules.—The Special Committee is hereby authorized to promulgate rules and
regulations and prescribe the appropriate forms and the required fees for the processing of petitions.

Sec. 4. Effectivity.—This Administrative Order shall take effect immediately.

In the Amended Rules and Regulations Implementing RA 8171 issued by the SCN on August 5,
1999, applicants for repatriation are required to submit documents in support of their petition such as
their birth certificate and other evidence proving their claim to Filipino citizenship. 19 These
requirements were imposed to enable the SCN to verify the qualifications of the applicant particularly
in light of the reasons for the renunciation of Philippine citizenship.

What petitioner simply did was that he took his oath of allegiance to the Republic of the Philippines;
then, executed an affidavit of repatriation, which he registered, together with the certificate of live
birth, with the Office of the Local Civil Registrar of Manila. The said office subsequently issued him a
certificate of such registration. 20 At that time, the SCN was already in place and operational by virtue
of the June 8, 1995 Memorandum issued by President Fidel V. Ramos. 21 Although A.O. No. 285
designating the SCN to process petitions filed pursuant to RA 8171 was issued only on August 22,
1996, it is merely a confirmatory issuance according to the Court in Angat v. Republic. 22 Thus,
petitioner should have instead filed a petition for repatriation before the SCN.

Requirements for repatriation under RA 8171

Even if petitioner––now of legal age––can still apply for repatriation under RA 8171, he nevertheless
failed to prove that his parents relinquished their Philippine citizenship on account of political or
economic necessity as provided for in the law. Nowhere in his affidavit of repatriation did he mention
that his parents lost their Philippine citizenship on account of political or economic reasons. It is
notable that under the Amended Rules and Regulations Implementing RA 8171, the SCN requires a
petitioner for repatriation to set forth, among others, "the reason/s why petitioner lost his/her Filipino
citizenship, whether by marriage in case of Filipino woman, or whether by political or economic
necessity in case of [a] natural-born Filipino citizen who lost his/her Filipino citizenship. In case of the
latter, such political or economic necessity should be specified." 23

Petitioner Tabasa asserts, however, that the CA erred in ruling that the applicant for repatriation
must prove that he lost his Philippine citizenship on account of political or economic necessity. He
theorizes that the reference to ‘political or economic reasons’ is "merely descriptive, not restrictive, of
the widely accepted reasons for naturalization in [a] foreign country." 24

Petitioner’s argument has no leg to stand on.

A reading of Section 1 of RA 8171 shows the manifest intent of the legislature to limit the benefit of
repatriation only to natural-born Filipinos who lost their Philippine citizenship on account of political
or economic necessity, in addition to Filipino women who lost their Philippine citizenship by marriage
to aliens. The precursor of RA 8171, Presidential Decree No. 725 (P.D. 725), 25 which was enacted
on June 5, 1975 amending Commonwealth Act No. 63, also gives to the same groups of former
Filipinos the opportunity to repatriate but without the limiting phrase, "on account of political or
economic necessity" in relation to natural-born Filipinos. By adding the said phrase to RA 8171, the
lawmakers clearly intended to limit the application of the law only to political or economic migrants,
aside from the Filipino women who lost their citizenship by marriage to aliens. This intention is more
evident in the following sponsorship speech of Rep. Andrea B. Domingo on House Bill No. 1248, the
origin of RA 8171, to wit:

Ms. Domingo: x x x

From my experience as the Commissioner of the Bureau of Immigration and Deportation, I observed
that there are only four types of Filipinos who leave the country.

The first is what we call the "economic refugees" who go abroad to work because there is no work to
be found in the country. Then we have the "political refugees" who leave the country for fear of their
lives because they are not in consonance with the prevailing policy of government. The third type is
those who have committed crimes and would like to escape from the punishment of said crimes.
Lastly, we have those Filipinos who feel that they are not Filipinos, thereby seeking other citizenship
elsewhere.

Of these four types of Filipinos, Mr. Speaker, the first two have to leave the country not of choice, but
rather out of sacrifice to look for a better life, as well as for a safer abode for themselves and their
families. It is for these two types of Filipinos that this measure is being proposed for approval by this
body. (Emphasis supplied.)

xxxx

x x x [I]f the body would recall, I mentioned in my short sponsorship speech the four types of
Filipinos who leave their country. And the two types—the economic and political refugees—are the
ones being addressed by this proposed law, and they are not really Filipino women who lost their
citizenship through marriage. We had a lot of problems with these people who left the country
because of political persecution or because of pressing economic reasons, and after feeling that
they should come back to the country and get back their citizenship and participate as they should in
the affairs of the country, they find that it is extremely difficult to get their citizenship back because
they are treated no different from any other class of alien. 26

From these two sources, namely, P.D. 725 and the sponsorship speech on House Bill No. 1248, it is
incontrovertible that the intent of our legislators in crafting Section 1 of RA 8171, as it is precisely
worded out, is to exclude those Filipinos who have abandoned their country for reasons other than
political or economic necessity.

Petitioner contends it is not necessary to prove his political or economic reasons since the act of
renouncing allegiance to one’s native country constitutes a "necessary and unavoidable shifting of
his political allegiance," and his father’s loss of Philippine citizenship through naturalization "cannot
therefore be said to be for any reason other than political or economic necessity." 27

This argument has no merit.

While it is true that renunciation of allegiance to one’s native country is necessarily a political act, it
does not follow that the act is inevitably politically or economically motivated as alleged by petitioner.
To reiterate, there are other reasons why Filipinos relinquish their Philippine citizenship. The
sponsorship speech of former Congresswoman Andrea B. Domingo illustrates that aside from
economic and political refugees, there are Filipinos who leave the country because they have
committed crimes and would like to escape from punishment, and those who really feel that they are
not Filipinos and that they deserve a better nationality, and therefore seek citizenship elsewhere.

Thus, assuming petitioner Tabasa is qualified under RA 8171, it is incumbent upon him to prove to
the satisfaction of the SCN that the reason for his loss of citizenship was the decision of his parents
to forfeit their Philippine citizenship for political or economic exigencies. He failed to undertake this
crucial step, and thus, the sought relief is unsuccessful.

Repatriation is not a matter of right, but it is a privilege granted by the State. This is mandated by the
1987 Constitution under Section 3, Article IV, which provides that citizenship may be lost or
reacquired in the manner provided by law. The State has the power to prescribe by law the
qualifications, procedure, and requirements for repatriation. It has the power to determine if an
applicant for repatriation meets the requirements of the law for it is an inherent power of the State to
choose who will be its citizens, and who can reacquire citizenship once it is lost. If the applicant, like
petitioner Tabasa, fails to comply with said requirements, the State is justified in rejecting the petition
for repatriation.

Petitioner: an undocumented alien subject to summary deportation

Petitioner claims that because of his repatriation, he has reacquired his Philippine citizenship;
therefore, he is not an undocumented alien subject to deportation.

This theory is incorrect.

As previously explained, petitioner is not entitled to repatriation under RA 8171 for he has not shown
that his case falls within the coverage of the law.

Office Memorandum No. 34 dated August 21, 1989 of the BID is enlightening on summary
deportation:

2. The Board of Special Inquiry and the Hearing Board IV shall observe summary deportation
proceedings in cases where the charge against the alien is overstaying, or the expiration or
cancellation by his government of his passport. In cases involving overstaying aliens, BSI and the
Hearing Board IV shall merely require the presentation of the alien’s valid passport and shall decide
the case on the basis thereof.
3. If a foreign embassy cancels the passport of the alien, or does not reissue a valid passport to him,
the alien loses the privilege to remain in the country, under the Immigration Act, Sections 10 and 15
(Schonemann v. Santiago, et al., G.R. No. 81461 [sic, should be ‘86461’], 30 May 1989). The
automatic loss of the privilege obviates deportation proceedings. In such instance, the Board of
Commissioners may issue summary judgment of deportation which shall be immediately
executory. 28

In addition, in the case of Schonemann v. Defensor Santiago, et al., this Court held:

It is elementary that if an alien wants to stay in the Philippines, he must possess the necessary
documents. One of these documents is a valid passport. There are, of course, exceptions where in
the exercise of its sovereign prerogatives the Philippines may grant refugee status, refuse to
extradite an alien, or otherwise allow him or her to stay here even if he [the alien] has no valid
passport or Philippine visa. "Boat people" seeking residence elsewhere are examples. However, the
grant of the privilege of staying in the Philippines is discretionary on the part of the proper
authorities. There is no showing of any grave abuse of discretion, arbitrariness, or whimsicality in the
questioned summary judgment. x x x 29

Petitioner Tabasa, whose passport was cancelled after his admission into the country, became an
undocumented alien who can be summarily deported. His subsequent "repatriation" cannot bar such
deportation especially considering that he has no legal and valid reacquisition of Philippine
citizenship.

WHEREFORE, this petition for review is DISMISSED, and the August 7, 1996 Decision of the Court
of Appeals is AFFIRMED. No costs to the petitioner.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO, CONCHITA CARPIO MORALES

Associate Justice Associate Justice

DANTE O. TINGA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

1Joaquin J. Bernas, S.J., The 1987 Constitution of the Philippines: A Commentary (2003),
Art. IV (Citizenship), Sec. 1, pp. 609-610.

2 Rollo, pp. 8-19.

3Rollo, p. 22. Note: The year 1986 (from the CA Decision) is replaced with year 1968 based
on the petition filed with the CA (rollo, pp. 27-36, at 32).

4
Based on petitioner Tabasa’s Affidavit of Repatriation and Oath of Allegiance, and the
Certification of facts of his birth from the Office of the Civil Registrar in Numancia, Aklan
(rollo, pp. 37-40), petitioner was born on February 21, 1959, thus making him around 9 years
of age at the time he was naturalized as an American citizen. In the pleadings filed before
the CA and this Court, however, petitioner alleged that he was naturalized as an American at
the age of seven (7). This age is used in this Decision for consistency.

5 Rollo, p. 32.

6Webster’s Third New International Dictionary of the English Language, Unabridged (1993),
p. 608.

7 Supra note 3, at 20.

8 Id. at 20-21.

9 CA rollo, p. 95.

10 Supra note 3, at 21-22.

11 Supra note 5, at 27.

12 or 37 years old, see footnote no. 4 of this Decision.

13 Supra note 3, at pars. 2-4.

14 Rollo, p. 150.

15 Supra note 3, at par. 5.

Id. at 20-25 (penned by Associate Justice Pedro A. Ramirez with Associate Justices Pacita
16

Cañizares-Nye and Romeo J. Callejo, Sr. [now a member of the Court] concurring).

17 RA 8171, Sec. 1.

18 We quote the opinion of Father Joaquin Bernas in Tecson v. Commission on Elections,

G.R. Nos. 161434, 161634 & 161824, March 3, 2004, 424 SCRA 277, 385-386 regarding the
transmissive essence of citizenship as follows:

4.3 The operation of the core principle of transmissibility in blood relation finds affirmation
and, more significantly, continuity in the 1935, 1973 and 1987 Constitutions in which blood
relationship becomes a principal derivation and transmissibility of citizenship. All
Constitutions embody this transmissive essence of citizenship in blood relationship. In the
determination as to who are citizens of the Philippines, they have a common provision that
those whose fathers are citizens of the Philippines are citizens.

xxxx

4.8. The transmissive essence of citizenship here is clearly the core principle of blood
relationship or jus sanguinis. On this account, the derivation of citizenship from a person or
the transmission of citizenship to his child, springs from a person or the transmission of
citizenship to his child, springs from the fact that he is the father. x x x

19Pertinent portions of the Amended Rules and Regulations Implementing Republic Act No.
8171 state:

RULE II

1. Said petition shall be in five (5) copies, legibly typed, and signed, thumbmarked [sic], and
verified by the petitioner, with his/her signed photograph in passport size attached to each
copy of the petition, and setting forth the following:

a. the petitioner's name and surname and any other name he/she has used or by which
he/she is known;

b. his/her present and former places of residence;

c. his/her place and date of birth, the names and citizenship of his/her parents and their
residences (if still living), and the reasons for the Filipino citizenship of his/her parents, if
such is the fact;

d. the basis for her being a Filipino citizen at the time of her marriage, if the petitioner is one
who lost her Filipino citizenship by marriage, or if the petitioner is a natural-born Filipino
citizen, the basis why he/she was a Filipino citizen at birth;
e. the reason/s why petitioner lost his/her Filipino citizenship, whether by marriage in case of
Filipino woman, or whether by political or economic necessity in case of natural-born Filipino
citizen who lost his/her Filipino citizenship. In case of the latter, such political or economic
necessity should be specified;

f. the reason/s why petitioner is seeking to reacquire Philippine citizenship by repatriation;

g. whether the petitioner is single, married or divorced, or his/her marriage had been
annulled. If married, petitioner shall state the date and place of his/her marriage, and the
name, date of birth, birthplace, citizenship, and residence of his/her spouses; if widowed, the
date and place of death of his/her spouse; and if his/her marriage had been annulled or
he/she had been divorced, the date of decree of annulment of marriage or divorce and the
court which issued the same;

h. his/her occupation, as well as the occupation of his/her spouse, in case the applicant is
married;

i. if the petitioner has children, the name, date and place of birth, and residence of each of
the children;

j. a declaration: (1) that petitioner is not a person opposed to organized government or

affiliated with any association or group of persons who uphold and teach doctrines opposing
organized government; (2) that petitioner is not a person defending or teaching the necessity
or propriety of violence, personal assault, or assassination for the predominance of their
ideas; (3) that petitioner is not a person convicted of crimes involving moral turpitude; or (4)
that petitioner is not a person suffering from mental alienation or incurable contagious
diseases;

k. a declaration that it is his/her intention to reacquire Philippine citizenship and to renounce

absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state, or
sovereignty, and particularly to the state or country of which he/she is a citizen or subject.

The petition must be accompanied by:

a. duplicate original or certified photocopies of petitioner's birth certificate or other evidences

of his/her former Filipino citizenship;

b. duplicate original or certified photocopies of petitioner's Alien Certificate of Registration

and his/her Native-born Certificate of Residence and Certificate of Arrival or Re-entry Permit
into the Philippines, if any;

c. duplicate original or certified photocopies of petitioner's marriage certificate, if married; or

the death certificate of his/her spouse, if widowed; or the decree granting petitioner a
divorce, if she/he is divorced, or annulling his/her marriage, if such marriage had been
annulled;

d. duplicate original or certified photocopies of the birth certificates, the Alien Certificates of
Registration, and the Immigrant Certificates of Residence or Native-born Certificates of
Residence (if any) of petitioner's minor children, whenever applicable.
Every page of the petition, as well as all the pages of its annexes and supporting documents
and papers, must be signed by petitioner in addition to the signatures thereof of the persons
executing or issuing the same.

2. The petition shall be given a docket number and stamped, indicating the date of filing. The
Committee shall record the filing of all such applications in a record book in chronological
order.

RULE III

After receipt of the petition for repatriation, the Committee may call the petitioner for
interview, after which the Committee, if it believes in view of the facts before it that petitioner
has all the qualifications and none of the disqualifications required for repatriation under
Republic Act No. 8171 shall approve the petition. Within ninety (90) days after being notified
of the approval of his petition, petitioner shall take [an] x x x oath of allegiance x x x

20
Supra note 2, at 12.

21 The Memorandum reactivating the Special Committee on Repatriation reads:

June 08 1995

MEMORANDUM

TO : The Solicitor General

The Undersecretary of Foreign Affairs

The Director-General, National Intelligence Coordinating Agency

You are hereby directed to immediately convene as the Special Committee on Naturalization
(SCN) created under Letter of Instruction No. 270 (11 April 1975), as amended, for the
limited purpose of processing applications pursuant to Presidential Decree No. 725 (1975)
and related laws; which provide for a simplified procedure for Filipino women, who lost their
Philippine citizenship by marriage to aliens, and natural-born Filipinos; to reacquire Philippine
citizenship through an application for repatriation. You are further directed to report, within
thirty (30) days from the date hereof and on a monthly basis thereafter, on the actions taken
pursuant to this directive.

For strict compliance.

(Signed) Fidel V. Ramos

22 G.R. No. 132244, September 14, 1999, 314 SCRA 438, 448-449.

23Special Committee on Naturalization, Amended Rules and Regulations Implementing RA

8171, (1999) Rule II, (e).

24 Supra note 2, at 14.

25 The pertinent portions of the law are as follows:

Presidential Decree No. 725 (June 5, 1975)

PROVIDING FOR REPATRIATION OF FILIPINO WOMEN WHO HAD LOST THEIR

PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND OF NATURAL BORN
FILIPINOS.

WHEREAS, there are many Filipino women who had lost their Philippine Citizenship by
marriage to aliens;

WHEREAS, while the new constitution allows a Filipino woman who marries an alien to
retain her Philippine citizenship unless by her act or omission, she is deemed under the law
to have renounced her Philippine citizenship, such provision of the new Constitution does not
apply to Filipino women who had married aliens before said Constitution took effect;

WHEREAS, the existing law (C.A. Nos. 63, as amended) allows the repatriation of Filipino
women who lost their citizenship by reason of their marriage to aliens only after the death of
their husbands or the termination of their marital status; and

WHEREAS, there are natural born Filipinos who have lost their Philippine citizenship but now
desire to re-acquire Philippine citizenship;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of

the powers in me vested by the Constitution, do hereby decree and order that: (1) Filipino
women who lost their Philippine citizenship by marriage to aliens; and (2) natural born
Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship
through repatriation by applying with the Special Committee on Naturalization created by
Letter of Instruction No. 270, and, if their applications are approved, taking the necessary
oath of allegiance to the Republic of the Philippines, after which they shall be deemed to
have reacquired Philippine citizenship. The Commission on Immigration and Deportation
shall thereupon cancel their certificate of registration.

xxxx

26 II Record, House 9th Congress 2nd Session 224-225 (August 4, 1993).

27 Supra note 14, at 152.

28 Rollo, pp. 71-72.

29Id. at 73 (citing the Court En Banc Resolution, G.R. No. 86461, May 30, 1989, rollo, pp.
38-39).
G.R. No. 163256 November 10, 2004

CICERON P. ALTAREJOS, petitioner,

vs.
COMMISSION ON ELECTIONS, JOSE ALMIÑE and VERNON VERSOZA, respondents.

DECISION

AZCUNA, J.:

This is a petition for certiorari, with prayer for the issuance of a temporary restraining order and/or a
writ of prohibitory and mandatory injunction, to set aside the Resolution promulgated by the
Commission on Elections (COMELEC), First Division, on March 22, 2004 disqualifying petitioner
Ciceron P. Altarejos from running as mayor of San Jacinto, Masbate, and another resolution of the
COMELEC en banc promulgated on May 7, 2004 denying petitioner's motion for reconsideration.

The factual antecedents are as follows:

Petitioner Altarejos was a candidate for mayor in the Municipality of San Jacinto, Masbate in the May
10, 2004 national and local elections.

On January 15, 2004, private respondents Jose Almiñe Altiche and Vernon Versoza, registered
voters of San Jacinto, Masbate, filed with the COMELEC, a petition to disqualify and to deny due
course or cancel the certificate of candidacy of petitioner on the ground that he is not a Filipino
citizen and that he made a false representation in his certificate of candidacy that "[he] was not a
permanent resident of or immigrant to a foreign country."

Private respondents alleged that based on a letter1 from the Bureau of Immigration dated June 25,
2001, petitioner was a holder of a permanent U.S. resident visa, an Alien Certificate of Registration
No. E139507 issued on November 3, 1997, and an Immigration Certificate of Residence No. 320846
issued on November 3, 1997 by the Bureau of Immigration.2

On January 26, 2004, petitioner filed an Answer3 stating, among others, that he did not commit false
representation in his application for candidacy as mayor because as early as December 17, 1997,
he was already issued a Certificate of Repatriation by the Special Committee on Naturalization, after
he filed a petition for repatriation pursuant to Republic Act No. 8171. Thus, petitioner claimed that his
Filipino citizenship was already restored, and he was qualified to run as mayor in the May 10, 2004
elections. Petitioner sought the dismissal of the petition.

On the date of the hearing, the parties were required to submit their Memoranda within three days.
Private respondents filed their Memorandum, while petitioner did not file one within the required
period.4 Petitioner, however, filed a Reply Memorandum5 subsequently.
Atty. Zacarias C. Zaragoza, Jr., regional election director for Region V and hearing officer of this
case, recommended that petitioner Altarejos be disqualified from being a candidate for the position
of mayor of San Jacinto, Masbate in the May 10, 2004 national and local elections. He found, thus:

xxx

The provisions of law governing the qualifications and disqualifications of elective local
officials are found in Sections 39 and 40 of Republic Act No. 7160 otherwise known as the
Local Government Code of 1991, which provide as follows:

SEC. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city or province or, in the case of member of
the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district
where he intends to be elected; a resident therein for at least one (1) year immediately
preceding the day of the election; and able to read and write Filipino or any other local
language or dialect.

xxx.

(c) Candidates for the position of mayor or vice-mayor of independent component cities,
component cities or municipalities must be at least twenty-one (21) years of age on election
day.

[SEC. 40. Disqualifications. – The following persons are disqualified from running for any
elective position:]

xxx.

(d) Those with dual citizenship.

xxx.

(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; xxx

Under the terms of the above quoted statutory provisions, it is required that an elective local
official must be a citizen of the Philippines, and he must not have a dual citizenship; must not
be a permanent resident in a foreign country or must not have acquired the right to reside
abroad.

In the present case, it has been established by clear and convincing evidence that
respondent is a citizen of the United States of America. Such fact is proven by his Alien
Certificate of Registration (ACR) No. E139507 issued on 3 November 1997 and Immigration
Certificate of Residence (ICR) with No. 320846 issued on 3 November 1997 by the Alien
Registration Division, Bureau of Immigration and Deportation. This was further confirmed in a
letter dated 25 June 2001 of then Commissioner ANDREA D. DOMINGO of the Bureau of
Immigration and Deportation.

Although respondent had petitioned for his repatriation as a Filipino citizen under Republic
Act No. 8171 on 17 December 1997, this did not restore to respondent his Filipino
citizenship, because Section 2 of the aforecited Republic Act No. 8171 specifically provides
 that "repatriation shall be effected by taking the necessary oath of allegiance to the Republic
of the Philippines and registration in the proper civil registry and in the Bureau of
Immigration."

It appears from the records of this case that respondent failed to prove that he has fully
complied with requirements of the above-quoted Section 2 of Republic Act 8171 to perfect
his repatriation and reacquire his Filipino citizenship. Respondent has not submitted any
document to prove that he has taken his oath of allegiance to the Republic of the Philippines
and that he has registered his fact of repatriation in the proper civil registry and in the Bureau
of Immigration. In fact, in a letter date 25 June 2001, Commissioner ANDREA DOMINGO
stated that RESPONDENT is still a holder of visa under Section 13 (g) of the Philippine
Immigration Act of 1940 as amended, with an indefinite authorized stay in the Philippines,
implying that respondent did not register his supposed Certificate of Repatriation with the
Bureau of Immigration otherwise his Alien Visa would have already been cancelled. The rule
is that in case of doubt concerning the grant of citizenship, such doubt should be resolved in
favor of the State and against the applicant (Cheng vs. Republic, L-16999, 22 June 1965).

xxx

Not having been able to prove that he has fully reacquired his Filipino citizenship after being
naturalized as a citizen of the United States, it is clear that respondent is not qualified to be
candidate for the position of Mayor of San Jacinto, Masbate, in the 10 May 2004 National
and Local Elections, pursuant to the aforequoted Sections 39 and 40 of the Local
Government Code of 1991.

As a further consequence of his not being a Filipino citizen, respondent has also committed
false representation in his certificate of candidacy by stating therein that he is a natural-born
Filipino citizen, when in fact, he has not yet even perfected the reacquisition of Filipino
citizenship. Such false representation constitutes a material misrepresentation as it relates to
his qualification as a candidate for public office, which could be a valid ground for the
cancellation of his certificate of candidacy under Section 78 of the Omnibus Election Code x
x x. 6

In its Resolution promulgated on March 22, 2004, the COMELEC, First Division, adopted the
findings and recommendation of Director Zaragoza. The dispositive portion of said Resolution
stated, thus:

WHEREFORE, premises considered, respondent CICERON PEREZ ALTAREJOS is hereby

disqualified to run as Mayor of San Jacinto, Masbate. Accordingly, his certificate of
candidacy for the position of Municipal Mayor of San Jacinto, Masbate is denied due course
and cancelled and his name deleted from the certified list of candidates for the May 10, 2004
elections.7

On March 25, 2004, petitioner filed a motion for reconsideration and attached the following
documents to prove that he had completed all the requirements for repatriation which thus entitled
him to run for an elective office, viz:

(1) Oath of Allegiance dated December 17, 1997;

(2) Identification Certificate No. 116543 issued by the Bureau of Immigration on March 1, 2004;
(3) Certification from the City Civil Registration Office, Makati City, that the Certificate of Repatriation
and Oath of Allegiance of petitioner was received by said office and registered, with the
corresponding fee paid, on February 18, 2004;

(4) A letter dated December 17, 1997 from the Special Committee on Naturalization to the Bureau
on Immigration and Deportation that it was furnishing said office with the Oath of Allegiance and
Certificate of Repatriation of petitioner for the cancellation of petitioner's registration in said office as
an alien, and the issuance to him of the corresponding Identification Card as Filipino citizen;

(5) A letter dated December 17, 1997 from the Special Committee on Naturalization to the Local
Registrar of San Jacinto, Masbate that it was sending petitioner's Oath of Allegiance and Certificate
of Repatriation for registration in their records and for petitioner's reacquisition of his former
Philippine citizenship.

On May 7, 2004, the COMELEC en banc promulgated a resolution denying the motion for
reconsideration, the dispositive portion of which reads:

WHEREFORE, premises considered, the Commission (En Banc) RESOLVED as it hereby

RESOLVES to DENY the Motion for Reconsideration for UTTER LACK OF MERIT and
AFFIRMS the Resolution of the First Division.8

The Comelec en banc held, thus:

The Comelec Rules of Procedure provides that insufficiency of evidence to justify the
decision is a ground for a motion for reconsideration (Rule 19, Section 1). The evidence
referred to in the above provision and to be considered in the Motion for Reconsideration are
those which were submitted during the hearing and attached to the respective Memoranda of
the parties which are already part of the records of the case. In this regard, the evidence of
the respondent were not able to overcome the evidence of the petitioners.

When the entire records of the case was forwarded to the Commission (First Division) the
respondent's only evidence was his Certificate of Repatriation dated 17 December 1977 and
marked as Annex 1 of his answer. This piece of evidence was not enough to controvert the
evidence of the petitioners which consist of the letter of the then Bureau of Immigration
Commissioner Andrea Domingo dated 25 June 2001 which stated that as of the even date
respondent is a holder of permanent resident visa (page 15 of the records) and the
certification of Josephine C. Camata dated 28 January 2004 certifying, that the name of the
respondent could not be found in the records of repatriation. (page 42 of the records) The
questioned resolution, is therefore, in order as the evidence submitted by the respondent
were insufficient to rebut the evidence of the petitioner.

Now, the respondent, in his Motion for Reconsideration, attempted to introduce to the record
new pieces of evidence, which introduction is not anymore allowed in a Motion for
Reconsideration. These are the following a) Annex "2" – Oath of Allegiance; b) Annex "3" –
Bureau of Immigration Identification Certificate; c) Annex "4" – Certification of the City Civil
Registrar of Makati City; d) Annex "5" – Letter addressed to the Local Civil Registrar of San
Jacinto, Masbate by Aurora P. Cortes of Special Committee on Naturalization; and e) Annex
"6" – Letter addressed to the Bureau of Immigration and Deportation by Aurora P. Cortes of
Special Committee on Naturalization.

Assuming that the new evidence of the respondent are admitted, with more reason should
we cancel his certificate of candidacy for his act of [misrepresenting] himself as a Filipino
 citizen when at the time he filed his certificate of candidacy, he has not yet perfected the
process of repatriation. He failed to comply with the requirements under Section 2 of
[Republic Act No.] 8171 which provides that repatriation shall be effected by taking the
necessary oath of allegiance to the Republic of the Philippines and registration in the proper
civil registry and in the Bureau of Immigration.

The certification was issued by the same Ms. Josephine C. Camata, City Civil Registrar,
dated February 18, 2004. This time, she certifies that Ciceron Perez Altarejos was registered
under Registry No. 1, Page 19, Book No. 1, Series of 2004 and paid under OR nos.
88325/8833256 dated February 18, 2004. (page 65 of the records). Obviously, he was able
to register in the proper civil registry only on February 18, 2004.

The respondent was able to register with the Bureau of Immigration only on March 1, 2004
as evidenced by the Bureau of Immigration Identification Certificate attached to the Motion
as Annex "3."

This fact confirms the finding of the Commission (First Division) that at the time respondent
filed his certificate of candidacy he is yet to complete the requirement under section two (2)
of RA 8171.

As a consequence of not being a Filipino citizen, he has committed false representation in

his certificate of candidacy. Such false representation constitutes a material
misrepresentation as it relates to his qualification as a candidate. As such the certificate of
candidacy may be cancelled on such ground. (Ycain vs. Caneja, 18 Phil. 778)9

On May 10, 2004, the election day itself, petitioner filed this petition praying that: (1) The petition be
given due course and a temporary restraining order and/or writ of preliminary injunction be issued ex
parte restraining the respondents and all persons acting on their behalf, from fully implementing the
questioned COMELEC Resolutions promulgated on March 22, 2004 and May 7, 2004; (2) a writ of
preliminary mandatory injunction be issued ordering the COMELEC and all persons acting on its
behalf to allow petitioner to run as Mayor of San Jacinto, Masbate in the May 10, 2004 elections, and
to count and canvass the votes cast in his favor and to proclaim him as the winning mayor of San
Jacinto, Masbate; and (3) after proper proceedings, judgment be rendered declaring null and void
and setting aside the COMELEC Resolutions promulgated on March 22, 2004 and May 7, 2004 and
other related Orders of the COMELEC or its representatives which have the effect of illegally
preventing petitioner from running as Mayor of San Jacinto, Masbate.

In its Comment,10 the Office of the Solicitor General stated that, based on the information relayed to it
by the COMELEC, petitioner's name, as a mayoralty candidate in San Jacinto, Masbate, was
retained in the list of candidates voted upon by the electorate in the said municipality. Hence, the
cancellation of petitioner's certificate of candidacy was never implemented. The COMELEC also
informed the Office of the Solicitor General that petitioner's opponent, Dr. Emilio Aris V. Espinosa,
was already proclaimed duly elected Mayor of San Jacinto, Masbate.

The Office of the Solicitor General contends that said supervening event has rendered the instant
petition moot and academic, and it prayed for the dismissal of the petition.

In his Reply,11 petitioner opposed the dismissal of his petition. He claims that the COMELEC
resolutions disqualifying him from running as a mayoralty candidate adversely affected his
candidacy, since his supporters were made to believe that his votes would not be counted.
Moreover, he stated that said COMELEC resolutions cast a doubt on his Philippine citizenship.
Petitioner points out that he took his Oath of Allegiance to the Republic of the Philippines on
December 17, 1997. In view thereof, he ran and was even elected as Mayor of San Jacinto,
Masbate during the 1998 elections. He argues that if there was delay in the registration of his
Certificate of Repatriation with the Bureau of Immigration and with the proper civil registry, the same
was brought about by the inaction on the part of said offices since the records of the Special
Committee on Naturalization show that his Certificate of Repatriation and Oath of Allegiance have
long been transmitted to said offices.

Petitioner also asserts that the subsequent registration of his Certificate of Repatriation with the
Bureau of Immigration and with the Civil Registry of Makati City prior to the May 10, 2004 elections
has the effect of curing the defect, if any, in the reacquisition of his Filipino citizenship as his
repatriation retroacted to the date of his application for repatriation as held in Frivaldo v. Comelec.

The pertinent issues raised are the following: (1) Is the registration of petitioner's repatriation with the
proper civil registry and with the Bureau of Immigration a prerequisite in effecting repatriation; and
(2) whether or not the COMELEC en banc committed grave abuse of discretion amounting to excess
or lack of jurisdiction in affirming the Resolution of the COMELEC, First Division.

As stated by the Office of the Solicitor General, where the issues have become moot and academic,
there is no justiciable controversy, thereby rendering the resolution of the same of no practical use or
value.12 Nonetheless, courts will decide a question otherwise moot and academic if it is capable of
repetition, yet evading review.13

First Issue: Is the registration of petitioner's repatriation

with the proper civil registry and with the Bureau of
Immigration a prerequisite in effecting repatriation?

The provision of law applicable in this case is Section 2 of Republic Act No. 8171,14 thus:

SEC. 2. Repatriation shall be effected by taking the necessary oath of allegiance to the
Republic of the Philippines and registration in the proper civil registry and in the Bureau of
Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate
of registration and issue the certificate of identification as Filipino citizen to the repatriated
citizen.

The law is clear that repatriation is effected "by taking the oath of allegiance to the Republic of the
Philippines and registration in the proper civil registry and in the Bureau of Immigration." Hence, in
addition to taking the Oath of Allegiance to the Republic of the Philippines, the registration of the
Certificate of Repatriation in the proper civil registry and the Bureau of Immigration is a prerequisite
in effecting the repatriation of a citizen.

In this case, petitioner took his Oath of Allegiance on December 17, 1997, but his Certificate of
Repatriation was registered with the Civil Registry of Makati City only after six years or on February
18, 2004, and with the Bureau of Immigration on March 1, 2004. Petitioner, therefore, completed all
the requirements of repatriation only after he filed his certificate of candidacy for a mayoralty
position, but before the elections.

When does the citizenship qualification of a candidate for an elective office apply?

In Frivaldo v. Commission on Elections,15 the Court ruled that the citizenship qualification must be
construed as "applying to the time of proclamation of the elected official and at the start of his term."
The Court, through Justice Artemio V. Panganiban, discussed, thus:
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:

* a citizen of the Philippines;

* a registered voter in the barangay, municipality, city, or province x x x where he intends to

be elected;

* a resident therein for at least one (1) year immediately preceding the day of the election;

* able to read and write Filipino or any other local language or dialect."

* In addition, "candidates for the position of governor x x x must be at least twenty-three (23)
years of age on election day."

From the above, it will be noted that the law does not specify any particular date or time
when the candidate must possess citizenship, unlike that for residence (which must consist
of at least one year's residency immediately preceding the day of election) and age (at least
twenty three years of age on election day).

Philippine citizenship is an indispensable requirement for holding an elective public office,

and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e.,
no person owing allegiance to another nation, shall govern our people and our country or a
unit of territory thereof. Now, an official begins to govern or to discharge his functions only
upon his proclamation and on the day the law mandates his term of office to begin. Since
Frivaldo re-assumed his citizenship on June 30, 1995—the very day the term of office of
governor (and other elective officials) began—he was therefore already qualified to be
proclaimed, to hold such office and to discharge the functions and responsibilities thereof as
of said date. In short, at that time, he was already qualified to govern his native Sorsogon.
This is the liberal interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was enacted. x x x
Paraphrasing this Court's ruling in Vasquez v. Giap and Li Seng Giap & Sons, if the purpose
of the citizenship requirement is to ensure that our people and country do not end up being
governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose
would not be thwarted but instead achieved by construing the citizenship qualification as
applying to the time of proclamation of the elected official and at the start of his
term.16 (Emphasis supplied.)

Moreover, in the case of Frivaldo v. Commission on Elections, the Court ruled that "the
repatriation of Frivaldo RETROACTED to the date of the filing of his application." In said
case, the repatriation of Frivaldo was by virtue of Presidential Decree No. 725, which took
effect on June 5, 1975. The Court therein declared that Presidential Decree No. 725 was a
curative statute, which is retroactive in nature. The retroactivity of Frivaldo's repatriation to
the date of filing of his application was justified by the Court, thus:

xxx

…The reason for this is simply that if, as in this case, it was the intent of the legislative
authority that the law should apply to past events—i.e., situations and transactions existing
even before the law came into being—in order to benefit the greatest number of former
Filipinos possible thereby enabling them to enjoy and exercise the constitutionally
guaranteed right of citizenship, and such legislative intention is to be given the fullest effect
and expression, then there is all the more reason to have the law apply in a retroactive or
 retrospective manner to situations, events and transactions subsequent to the passage of
such law. That is, the repatriation granted to Frivaldo x x x can and should be made to take
effect as of date of his application. As earlier mentioned, there is nothing in the law that
would bar this or would show a contrary intention on the part of the legislative authority; and
there is no showing that damage or prejudice to anyone, or anything unjust or injurious would
result from giving retroactivity to his repatriation. Neither has Lee shown that there will result
the impairment of any contractual obligation, disturbance of any vested right or breach of
some constitutional guaranty.

xxx

Another argument for retroactivity to the date of filing is that it would prevent prejudice to
applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee
decides not to act, i.e., to delay the processing of applications for any substantial length of
time, then the former Filipinos who may be stateless, as Frivaldo—having already renounced
his American citizenship—was, may be prejudiced for causes outside their control. This
should not be. In case of doubt in the interpretation or application of laws, it is to be
presumed that the law-making body intended right and justice to prevail.17

Republic Act No. 817118 has impliedly repealed Presidential `Decree No. 725. They cover the same
subject matter: Providing for the repatriation of Filipino women who have lost their Philippine
citizenship by marriage to aliens and of natural-born Filipinos. The Court's ruling in Frivaldo v.
Commission on Elections that repatriation retroacts to the date of filing of one's application for
repatriation subsists for the same reasons quoted above.

Accordingly, petitioner's repatriation retroacted to the date he filed his application in 1997. Petitioner
was, therefore, qualified to run for a mayoralty position in the government in the May 10, 2004
elections. Apparently, the COMELEC was cognizant of this fact since it did not implement the
assailed Resolutions disqualifying petitioner to run as mayor of San Jacinto, Masbate.

Second Issue: Whether or not the COMELEC en banc

gravely abused its discretion in affirming the
Resolution of the COMELEC, First Division?

The Court cannot fault the COMELEC en banc for affirming the decision of the COMELEC, First
Division, considering that petitioner failed to prove before the COMELEC that he had complied with
the requirements of repatriation. Petitioner submitted the necessary documents proving compliance
with the requirements of repatriation only during his motion for reconsideration, when the COMELEC
en banc could no longer consider said evidence. As the COMELEC en banc correctly stated:

The Comelec Rules of Procedure provides that insufficiency of evidence to justify the
decision is a ground for a motion for reconsideration (Rule 19, Section 1). The evidence
referred to in the above provision and to be considered in the Motion for Reconsideration are
those which were submitted during the hearing and attached to the respective Memoranda of
the parties which are already part of the records of the case. In this regard, the evidence of
the respondent were not able to overcome the evidence of the petitioners.19

It is, therefore, incumbent upon candidates for an elective office, who are repatriated citizens, to be
ready with sufficient evidence of their repatriation in case their Filipino citizenship is questioned to
prevent a repetition of this case.
WHEREFORE, the petition seeking the nullification of the Resolution of the COMELEC en banc of
May 7, 2004, affirming the Resolution of its First Division dated March 22, 2004, is hereby DENIED.
No costs.

SO ORDERED.

Davide, Jr., C.J., Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,

Carpio-Morales, Callejo, Sr., Chico-Nazario, and Garcia, JJ., concur.
Puno, and Tinga, JJ., on official leave.
Quisumbing, J., in the result.
Corona, J., on leave.

Footnotes

1
COMELEC (First Division) Resolution, Rollo, p. 36.

2
COMELEC en banc Resolution, Rollo, p. 43.

3
Rollo, p. 73.

4
Supra, note 2.

5
Supra, note 3, at 87.

6
Supra, note 1, at 39-40.

7
Id. at 41.

8
Supra, note 3, at 47.

9
Id. at 44-47.

10
Id, at 106.

11
Id. at 112.

Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004; Garcia v.
12

Commission on Elections,258 SCRA 754, 757 (1996); Yorac v. Magalona, 3 SCRA 76, 77
(1961).

Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, citing Brillantes, Jr. v.
13

Commission on Elections, G.R. No. 163193, June 15, 2004.

14
REPUBLIC ACT NO. 8171:
 "AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO WOMEN WHO
HAVE LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND
OF NATURAL-BORN FILIPINOS

Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:

SECTION 1. Filipino women who have lost their Philippine citizenship by marriage to
aliens and natural-born Filipinos who have lost their Philippine citizenship, including
their minor children, on account of political or economic necessity, may reacquire
Philippine citizenship through repatriation in the manner provided in Section 4 of
Commonwealth Act No. 63, as amended: Provided, That the applicant is not a:

(1) Person opposed to organized government or affiliated with an association

or group of persons who uphold and teach doctrines opposing organized
government;

(2) Person defending or teaching the necessity or propriety of violence,

personal assault, or association for the predominance of their ideas;

(3) Person convicted of crimes involving moral turpitude; or

(4) Person suffering from mental alienation or incurable contagious diseases.

SEC. 2. Repatriation shall be effected by taking the necessary oath of allegiance to

the Republic of the Philippines and registration in the proper civil registry and in the
Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the
pertinent alien certificate of registration and issue the certificate of identification as
Filipino citizen to the repatriated citizen.

SEC. 3. All laws, decrees, orders, rules and regulations, or parts thereof inconsistent
with this Act are hereby repealed or amended accordingly.

SEC. 4. This Act shall take effect thirty (30) days after its publication in a newspaper
of general circulation."

15
257 SCRA 727 (1996).

16
Id. at 748-749.

17
Id. at 754-756.

18
Republic Act No. 8171 took effect on January 12, 1996.

19
Supra, note 3, at 44.
G.R. No. 199113

RENATO M. DAVID, Petitioner,

vs.
EDITHA A. AGBAY and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

VILLARAMA, JR., J.:

This is a petition for review under Rule 45 seeking to reverse the Order1 dated October 8, 2011 of
the Regional Trial Court (RTC) of Pinamalayan, Oriental Mindoro, which denied the petition for
certiorari filed by Renato(petitioner)M. David. Petitioner assailed the Order2 dated March 22, 2011 of
the Municipal Trial Court (MTC) of Socorro, Oriental Mindoro denying his motion for redetermination
of probable cause.

The factual antecedents:

In 1974, petitioner migrated to Canada where he became a Canadian citizen by naturalization. Upon
their retirement, petitioner and his wife returned to the Philippines. Sometime in 2000, they
purchased a 600-square meter lot along the beach in Tambong, Gloria, Oriental Mindoro where they
constructed a residential house. However, in the year 2004, they came to know that the portion
where they built their house is public land and part of the salvage zone.

On April 12, 2007, petitioner filed a Miscellaneous Lease Application3 (MLA) over the subject land
with the Department of Environment and Natural Resources (DENR) at the Community Environment
and Natural Resources Office (CENRO) in Socorro. In the said application, petitioner indicated that
he is a Filipino citizen.

Private respondent Editha A. Agbay opposed the application on the ground that petitioner, a
Canadian citizen, is disqualified to own land. She also filed a criminal complaint for falsification of
public documents under Article 172 of the Revised Penal Code (RPC) (I.S. No. 08-6463) against the
petitioner.

Meanwhile, petitioner re-acquired his Filipino citizenship under the provisions of Republic Act No.
9225,4 (R.A. 9225) as evidenced by Identification Certificate No. 266-10-075 issued by the Consulate
General of the Philippines (Toronto) on October 11, 2007.

In his defense, petitioner averred that at the time he filed his application, he had intended to re-
acquire Philippine citizenship and that he had been assured by a CENRO officer that he could
declare himself as a Filipino. He further alleged that he bought the property from the Agbays who
misrepresented to him that the subject property was titled land and they have the right and authority
to convey the same. The dispute had in fact led to the institution of civil and criminal suits between
him and private respondent’s family.

On January 8, 2008,6 the Office of the Provincial Prosecutor issued its Resolution7 finding probable
cause to indict petitioner for violation of Article 172 of the RPC and recommending the filing of the
corresponding information in court. Petitioner challenged the said resolution in a petition for review
he filed before the Department of Justice (DOJ).
On June 3, 2008, the CENRO issued an order rejecting petitioner’s MLA. It ruled that petitioner’s
subsequent re-acquisition of Philippine citizenship did not cure the defect in his MLA which was
void ab initio.8

In the meantime, on July 26, 2010, the petition for review filed by petitioner was denied by the DOJ
which held that the presence of the elements of the crime of falsification of public document suffices
to warrant indictment of the petitioner notwithstanding the absence of any proof that he gained or
intended to injure a third person in committing the act of falsification.9 Consequently, an information
for Falsification of Public Document was filed before the MTC (Criminal Case No. 2012) and a
warrant of arrest was issued against the petitioner.

On February 11, 2011, after the filing of the Information and before his arrest, petitioner filed an
Urgent Motion for Re-Determination of Probable Cause10 in the MTC. Interpreting the provisions of
the law relied upon by petitioner, the said court denied the motion, holding that R.A. 9225 makes a
distinction between those who became foreign citizens during its effectivity, and those who lost their
Philippine citizenship before its enactment when the governing law was Commonwealth Act No.
6311 (CA 63). Since the crime for which petitioner was charged was alleged and admitted to have
been committed on April 12, 2007 before he had re- acquired his Philippine citizenship, the MTC
concluded that petitioner was at that time still a Canadian citizen. Thus, the MTC ordered:

WHEREFORE, for lack of jurisdiction over the person of the accused, and for lack of merit, the
motion is DENIED.

SO ORDERED.12

In his motion for reconsideration,13 petitioner questioned the foregoing order denying him relief on the
ground of lack of jurisdiction and insisted that the issue raised is purely legal. He argued that since
his application had yet to receive final evaluation and action by the DENR Region IV-B office in
Manila, it is academic to ask the citizenship of the applicant (petitioner) who had re-acquired
Philippine citizenship six months after he applied for lease of public land. The MTC denied the
motion for reconsideration.14

Dissatisfied, petitioner elevated the case to the RTC via a petition15 for certiorari under Rule 65,
alleging grave abuse of discretion on the part of the MTC. He asserted that first, jurisdiction over the
person of an accused cannot be a pre-condition for the re-determination of probable cause by the
court that issues a warrant of arrest; and second, the March 22, 2011 Order disregarded the legal
fiction that once a natural-born Filipino citizen who had been naturalized in another country re-
acquires his citizenship under R.A. 9225, his Filipino citizenship is thus deemed not to have been
lost on account of said naturalization.

In his Comment and Opposition,16 the prosecutor emphasized that the act of falsification was already
consummated as petitioner has not yet re-acquired his Philippine citizenship, and his subsequent
oath to re-acquire Philippine citizenship will only affect his citizenship status and not his criminal act
which was long consummated prior to said oath of allegiance.

On October 8, 2011, the RTC issued the assailed Order denying the petition for certiorari after
finding no grave abuse of discretion committed by the lower court, thus:

ACCORDINGLY, the petition is hereby DENIED. At any rate petitioner is not left without any remedy
or recourse because he can proceed to trial where he can make use of his claim to be a Filipino
citizen as his defense to be adjudicated in a full blown trial, and in case of conviction, to appeal such
conviction.
SO ORDERED.17

Petitioner is now before us arguing that –

A. By supporting the prosecution of the petitioner for falsification, the lower court has
disregarded the undisputed fact that petitioner is a natural-born Filipino citizen, and that by
re-acquiring the same status under R.A. No. 9225 he was by legal fiction "deemed not to
have lost" it at the time of his naturalization in Canada and through the time when he was
said to have falsely claimed Philippine citizenship.

B. By compelling petitioner to first return from his legal residence in Canada and to surrender
or allow himself to be arrested under a warrant for his alleged false claim to Philippine
citizenship, the lower court has pre-empted the right of petitioner through his wife and
counsel to question the validity of the said warrant of arrest against him before the same is
implemented, which is tantamount to a denial of due process.18

In his Comment, the Solicitor General contends that petitioner’s argument regarding the retroactivity
of R.A. 9225 is without merit. It is contended that this Court’s rulings in Frivaldo v. Commission on
1âw phi1

Elections19 and Altarejos v. Commission on Elections20 on the retroactivity of one’s re- acquisition of
Philippine citizenship to the date of filing his application therefor cannot be applied to the case of
herein petitioner. Even assuming for the sake of argument that such doctrine applies in the present
situation, it will still not work for petitioner’s cause for the simple reason that he had not alleged,
much less proved, that he had already applied for reacquisition of Philippine citizenship before he
made the declaration in the Public Land Application that he is a Filipino. Moreover, it is stressed that
in falsification of public document, it is not necessary that the idea of gain or intent to injure a third
person be present. As to petitioner’s defense of good faith, such remains to be a defense which may
be properly raised and proved in a full- blown trial.

On the issue of jurisdiction over the person of accused (petitioner), the Solicitor General opines that
in seeking an affirmative relief from the MTC when he filed his Urgent Motion for Re-determination of
Probable Cause, petitioner is deemed to have submitted his person to the said court’s jurisdiction by
his voluntary appearance. Nonetheless, the RTC correctly ruled that the lower court committed no
grave abuse of discretion in denying the petitioner’s motion after a judicious, thorough and personal
evaluation of the parties’ arguments contained in their respective pleadings, and the evidence
submitted before the court.

In sum, the Court is asked to resolve whether (1) petitioner may be indicted for falsification for
representing himself as a Filipino in his Public Land Application despite his subsequent re-
acquisition of Philippine citizenship under the provisions of R.A. 9225; and (2) the MTC properly
denied petitioner’s motion for re-determination of probable cause on the ground of lack of jurisdiction
over the person of the accused (petitioner).

R.A. 9225, otherwise known as the "Citizenship Retention and Re- acquisition Act of 2003," was
signed into law by President Gloria Macapagal-Arroyo on August 29, 2003. Sections 2 and 3 of said
law read:

SEC. 2. Declaration of Policy.–It is hereby declared the policy of the State that all Philippine citizens
who become citizens of another country shall be deemed not to have lost their Philippine
citizenship under the conditions of this Act.

SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the contrary notwithstanding,

natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine
citizenship upon taking the following oath of allegiance to the Republic:

"I ______________________, solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by
the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept
the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I
impose this obligation upon myself voluntarily without mental reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a
foreign country shall retain their Philippine citizenship upon taking the aforesaid
oath. (Emphasis supplied)

While Section 2 declares the general policy that Filipinos who have become citizens of another
country shall be deemed "not to have lost their Philippine citizenship," such is qualified by the phrase
"under the conditions of this Act." Section 3 lays down such conditions for two categories of natural-
born Filipinos referred to in the first and second paragraphs. Under the first paragraph are those
natural-born Filipinos who have lost their citizenship by naturalization in a foreign country who
shall re-acquire their Philippine citizenship upon taking the oath of allegiance to the Republic of the
Philippines. The second paragraph covers those natural-born Filipinos who became foreign citizens
after R.A. 9225 took effect, who shall retain their Philippine citizenship upon taking the same oath.
The taking of oath of allegiance is required for both categories of natural-born Filipino citizens who
became citizens of a foreign country, but the terminology used is different, "re-acquired" for the first
group, and "retain" for the second group.

The law thus makes a distinction between those natural-born Filipinos who became foreign citizens
before and after the effectivity of R.A. 9225. Although the heading of Section 3 is "Retention of
Philippine Citizenship", the authors of the law intentionally employed the terms "re-acquire" and
"retain" to describe the legal effect of taking the oath of allegiance to the Republic of the Philippines.
This is also evident from the title of the law using both re-acquisition and retention.

In fine, for those who were naturalized in a foreign country, they shall be deemed to have re-
acquired their Philippine citizenship which was lost pursuant to CA 63, under which naturalization in
a foreign country is one of the ways by which Philippine citizenship may be lost. As its title declares,
R.A. 9225 amends CA 63 by doing away with the provision in the old law which takes away
Philippine citizenship from natural-born Filipinos who become naturalized citizens of other countries
and allowing dual citizenship,21 and also provides for the procedure for re-acquiring and retaining
Philippine citizenship. In the case of those who became foreign citizens after R.A. 9225 took effect,
they shall retain Philippine citizenship despite having acquired foreign citizenship provided they took
the oath of allegiance under the new law.

Petitioner insists we should not distinguish between re-acquisition and retention in R.A. 9225. He
asserts that in criminal cases, that interpretation of the law which favors the accused is preferred
because it is consistent with the constitutional presumption of innocence, and in this case it becomes
more relevant when a seemingly difficult question of law is expected to have been understood by the
accused, who is a non-lawyer, at the time of the commission of the alleged offense. He further cites
the letter-reply dated January 31, 201122 of the Bureau of Immigration (BI) to his query, stating that
his status as a natural-born Filipino will be governed by Section 2 of R.A. 9225.

These contentions have no merit.

That the law distinguishes between re-acquisition and retention of Philippine citizenship was made
clear in the discussion of the Bicameral Conference Committee on the Disagreeing Provisions of
House Bill No. 4720 and Senate Bill No. 2130 held on August 18, 2003, where Senator Franklin
Drilon was responding to the query of Representative Exequiel Javier:

REP. JAVIER. I have some questions in Section 3. Here, under Section 3 of the Senate version,
"Any provision of law on the contrary notwithstanding, natural-born citizens of the Philippines who,
after the effectivity of this Act, shall… and so forth, ano, shall retain their Philippine citizenship.

Now in the second paragraph, natural-born citizens who have lost their citizenship by reason of their
naturalization after the effectivity of this Act are deemed to have reacquired…

THE CHAIRMAN (SEN. DRILON). Prior to the effectivity.

REP. JAVIER. Well, you have two kinds of natural-born citizens here. Natural-born citizens who
acquired foreign citizenship after the effectivity of this act are considered to have retained their
citizenship. But natural-born citizens who lost their Filipino citizenship before the effectivity of this act
are considered to have reacquired. May I know the distinction? Do you mean to say that natural-born
citizens who became, let’s say, American citizens after the effectivity of this act are considered
natural-born?

Now in the second paragraph are the natural-born citizens who lost their citizenship before the
effectivity of this act are no longer natural born citizens because they have just reacquired their
citizenship. I just want to know this distinction, Mr. Chairman.

THE CHAIRMAN (SEN. DRILON). The title of the Senate version is precisely retention and
reacquisition. The reacquisition will apply to those who lost their Philippine citizenship by
virtue of Commonwealth Act 63.Upon the effectivity -- assuming that we can agree on this, upon
the effectivity of this new measure amending Commonwealth Act 63, the Filipinos who lost their
citizenship is deemed to have reacquired their Philippine citizenship upon the effectivity of the act.

The second aspect is the retention of Philippine citizenship applying to future instances. So
that’s the distinction.

REP. JAVIER. Well, I’m just asking this question because we are here making distinctions between
natural-born citizens. Because this is very important for certain government positions, ‘no, because
natural-born citizens are only qualified for a specific…

THE CHAIRMAN (SEN. DRILON). That is correct.

REP. JAVIER. ...positions under the Constitution and under the law.

THE CHAIRMAN (SEN. DRILON). Yes. We can get to that later on. It’s one of the provisions, yes.
But just for purposes of the explanation, Congressman Javier, that is our conceptualization.
Reacquired for those who previously lost [Filipino citizenship] by virtue of Commonwealth
Act 63, and retention for those in the future. (Emphasis supplied)

Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of R.A. 9225,
he belongs to the first category of natural- born Filipinos under the first paragraph of Section 3 who
lost Philippine citizenship by naturalization in a foreign country. As the new law allows dual
citizenship, he was able to re-acquire his Philippine citizenship by taking the required oath of
allegiance.

For the purpose of determining the citizenship of petitioner at the time of filing his MLA, it is not
necessary to discuss the rulings in Frivaldo and Altarejos on the retroactivity of such reacquisition
because R.A. 9225 itself treats those of his category as having already lost Philippine citizenship, in
contradistinction to those natural-born Filipinos who became foreign citizens after R.A. 9225 came
into force. In other words, Section 2 declaring the policy that considers Filipinos who became foreign
citizens as not to have lost their Philippine citizenship, should be read together with Section 3, the
second paragraph of which clarifies that such policy governs all cases after the new law’s effectivity.

As to the letter-reply of BI, it simply quoted Section 2 of R.A. 9225 without any reference to Section 3
on the particular application of reacquisition and retention to Filipinos who became foreign citizens
before and after the effectivity of R.A. 9225.

Petitioner’s plea to adopt the interpretation most favorable to the accused is likewise misplaced.
Courts adopt an interpretation more favorable to the accused following the time-honored principle
that penal statutes are construed strictly against the State and liberally in favor of the accused.23 R.A.
9225, however, is not a penal law.

Falsification of documents under paragraph 1, Article 17224 in relation to Article 17125 of the RPC
refers to falsification by a private individual, or a public officer or employee who did not take
advantage of his official position, of public, private, or commercial documents. The elements of
falsification of documents under paragraph 1, Article 172 of the RPC are:

(1)that the offender is a private individual or a public officer or employee who did not take
advantage of his official position;

(2)that he committed any of the acts of falsification enumerated in Article 171 of the RPC;
and

(3)that the falsification was committed in a public, official or commercial document.26

Petitioner made the untruthful statement in the MLA, a public document, that he is a Filipino citizen
at the time of the filing of said application, when in fact he was then still a Canadian citizen. Under
CA 63, the governing law at the time he was naturalized as Canadian citizen, naturalization in a
foreign country was among those ways by which a natural-born citizen loses his Philippine
citizenship. While he re-acquired Philippine citizenship under R.A. 9225 six months later, the
falsification was already a consummated act, the said law having no retroactive effect insofar as his
dual citizenship status is concerned. The MTC therefore did not err in finding probable cause for
falsification of public document under Article 172, paragraph 1.

The MTC further cited lack of jurisdiction over the person of petitioner accused as ground for
denying petitioner’s motion for re- determination of probable cause, as the motion was filed prior to
his arrest. However, custody of the law is not required for the adjudication of reliefs other than an
application for bail.27 In Miranda v. Tuliao,28 which involved a motion to quash warrant of arrest, this
Court discussed the distinction between custody of the law and jurisdiction over the person, and held
that jurisdiction over the person of the accused is deemed waived when he files any pleading
seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by
impugning such jurisdiction over his person. Thus:
In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing
of the above Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D.
Regalado, in Santiago v. Vasquez:

The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is
accomplished either by his pleading to the merits (such as by filing a motion to quash or other
pleadings requiring the exercise of the court’s jurisdiction thereover, appearing for arraignment,
entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the
provisional liberty of the accused, as a rule the same cannot be posted before custody of the
accused has been acquired by the judicial authorities either by his arrest or voluntary surrender.

Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over
the person. Custody of the law is required before the court can act upon the application for bail, but
is not required for the adjudication of other reliefs sought by the defendant where the mere
application therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the
accused. Custody of the law is accomplished either by arrest or voluntary surrender, while
jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. One
can be under the custody of the law but not yet subject to the jurisdiction of the court over his
person, such as when a person arrested by virtue of a warrant files a motion before arraignment to
quash the warrant. On the other hand, one can be subject to the jurisdiction of the court over his
person, and yet not be in the custody of the law, such as when an accused escapes custody after
his trial has commenced. Being in the custody of the law signifies restraint on the person, who is
thereby deprived of his own will and liberty, binding him to become obedient to the will of the law.
Custody of the law is literally custody over the body of the accused. It includes, but is not limited to,
detention.

xxxx

While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a
general rule, one who seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court. As we held in the aforecited case of Santiago, seeking an affirmative
relief in court, whether in civil or criminal proceedings, constitutes voluntary appearance.

xxxx

To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of
the accused is deemed waived by the accused when he files any pleading seeking an
affirmative relief, except in cases when he invokes the special jurisdiction of the court by
impugning such jurisdiction over his person.Therefore, in narrow cases involving special
appearances, an accused can invoke the processes of the court even though there is neither
jurisdiction over the person nor custody of the law. However, if a person invoking the special
jurisdiction of the court applies for bail, he must first submit himself to the custody of the
law.29 (Emphasis supplied)

Considering that petitioner sought affirmative relief in filing his motion for re-determination of
probable cause, the MTC clearly erred in stating that it lacked jurisdiction over his person.
Notwithstanding such erroneous ground stated in the MTC's order, the RTC correctly ruled that no
grave abuse of discretion was committed by the MTC in denying the said motion for lack of merit.

WHEREFORE, the petition is DENIED. The Order dated October 8, 2011 of the Regional Trial Court
of Pinamalayan, Oriental Mindoro in Civil Case No. SCA-07-11 (Criminal Case No. 2012) is
hereby AFFIRMED and UPHELD.
With costs against the petitioner.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

DIOSDADO M. PERALTA BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE*
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Acting Chief Justice

Footnotes

*
Designated additional member per Raffle dated March 9, 2015.

1
Rollo, pp. 26-29. Penned by Presiding Judge Recto A. Calabocal.

2
Id. at 67-71. Penned by Acting MTC Judge Benuardo B. Manalo.

3
Id. at 32.
4
AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE
FOREIGN CITIZENSHIP PERMANENT, AMENDING FOR THE PURPOSE
COMMONWEALTH ACT NO. 63, AS AMENDED, AND FOR OTHER PURPOSES.

5
Rollo, p. 33.

6
Should be January 8, 2009, id. at 13 & 50; records, pp. 6 &30.

7
Rollo, pp. 36-38.

8
Id. at 34-35.

9
Id. at 50-53.

10
Id. at 54-58.

AN ACT PROVIDING FOR THE WAYS IN WHICH PHILIPPINE CITIZENSHIP MAY BE

11

LOST OR REACQUIRED, approved on October 21, 1936.

12
Rollo, p. 71.

13
Id. at 72-75.

14
Id. at 76.

15
Records, pp. 1-16.

16
Id. at 65-67.

17
Rollo, p. 29.

18
Id. at 16.

19
327 Phil. 521 (1996).

20
484 Phil. 609 (2004).

AASJS (Advocates and Adherents of Social Justice for School Teachers and Allied
21

Workers) v. Datumanong, 551 Phil. 110, 117-118 (2007).

22
Rollo, p. 59.

People v. Temporada, 594 Phil. 680, 735 (2008), citing People v. Ladjaalam, 395 Phil. 1,
23

35 (2000).

24
Art. 172. Falsification by private individuals and use of falsified documents. – The penalty
of prision correccional in its medium and maximum periods and a fine of not more than 5,000
pesos shall be imposed upon:
 1.Any private individual who shall commit any of the falsifications enumerated in the
next preceding article in any public or official document or letter of exchange or any
other kind of commercial document; and

2.Any person who, to the damage of a third party, or with the intent to cause such
damage, shall in any private document commit any of the acts of falsification
enumerated in the next preceding article.

Any person who shall knowingly introduce in evidence in any judicial proceeding or to
the damage of another or who, with the intent to cause such damage, shall use any
of the false documents embraced in the next preceding article, or in any of the
foregoing subdivisions of this article, shall be punished by the penalty next lower in
degree.

25
ART. 171. Falsification by public officer, employee or notary or ecclesiastical minister. —
The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon
any public officer, employee, or notary who, taking advantage of his official position, shall
falsify a document by committing any of the following acts:

1.Counterfeiting or imitating any handwriting, signature or rubric;

2.Causing it to appear that persons have participated in any act or proceeding when
they did not in fact so participate;

3.Attributing to persons who have participated in an act or proceeding statements

other than those in fact made by them;

4.Making untruthful statements in a narration of facts;

5.Altering true dates;

6.Making any alteration or intercalation in a genuine document which changes its

meaning;

7.Issuing in an authenticated form a document purporting to be a copy of an original

document when no such original exists, or including in such copy a statement
contrary to, or different from, that of the genuine original; or

8.Intercalating any instrument or note relative to the issuance thereof in a protocol,

registry, or official book.

The same penalty shall be imposed upon any ecclesiastical minister who shall
commit any of the offenses enumerated in the preceding paragraphs of this article,
with respect to any record or document of such character that its falsification may
affect the civil status of persons.

26
Panuncio v. People, 610 Phil. 595, 603-604 (2009).

Jimenez v. Sorongon, G.R. No. 178607, December 5, 2012, 687 SCRA 151, 161, citing
27

Alawiya, et al. v. Court of Appeals, et al., 603 Phil. 264, 276 (2009); and Miranda v. Tuliao,
520 Phil. 907, 919 (2006).
G.R. No. 1051 May 19, 1903

THE UNITED STATES, complainant-appellee,

vs.
FRED L. DORR, ET AL., defendants-appellants.

F. G. Waite for appellants.

Solicitor-General Araneta for appellee.

LADD, J.:

The defendants have been convicted upon a complaint charging them with the offense of writing,
publishing, and circulating a scurrilous libel against the Government of the United States and the
Insular Government of the Philippine Islands. The complaint is based upon section 8 of Act No. 292
of the Commission, which is as follows:

Every person who shall utter seditious words or speeches, write, publish, or circulate
scurrilous libels against the Government of the United States or the Insular Government of
the Philippine Islands, or which tend to disturb or obstruct any lawful officer in executing his
office, or which tend to instigate others to cabal or meet together for unlawful purposes, or
which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people
against the lawful authorities, or to disturb the peace of the community, the safety and order
of the Government, or who shall knowingly conceal such evil practices, shall be punished by
a fine not exceeding two thousand dollars or by imprisonment not exceeding two years, or
both, in the discretion of the court.

The alleged libel was published as an editorial in the issue of the "Manila Freedom" of April 6, 1902,
under the caption of "A few hard facts."

The Attorney-General in his brief indicates the following passages of the article as those upon which
he relies to sustain the conviction:

Sidney Adamson, in a late letter in "Leslie's Weekly," has the following to say of the action of
the Civil Commission in appointing rascally natives to important Government positions:

"It is a strong thing to say, but nevertheless true, that the Civil Commission, through
its ex-insurgent office holders, and by its continual disregard for the records of
natives obtained during the military rule of the Islands, has, in its distribution of
offices, constituted a protectorate over a set of men who should be in jail or deported.
. . . [Reference is then made to the appointment of one Tecson as justice of the
peace.] This is the kind of foolish work that the Commission is doing all over the
Islands, reinstating insurgents and rogues and turning down the men who have
during the struggle, at the risk of their lives, aided the Americans."

xxx xxx xxx

There is no doubt but that the Filipino office holders of the Islands are in a good many
instances rascals.

xxx xxx xxx

 The commission has exalted to the highest positions in the Islands Filipinos who are alleged
to be notoriously corrupt and rascally, and men of no personal character.

xxx xxx xxx

Editor Valdez, of "Miau," made serious charges against two of the native Commissioners — charges
against Trinidad H. Pardo de Tavera, which, if true, would brand the man as a coward and a rascal,
and with what result? . . . [Reference is then made to the prosecution and conviction of Valdez for
libel "under a law which specifies that the greater the truth the greater the libel."] Is it the desire of
the people of the United States that the natives against whom these charges have been made
(which, if true, absolutely vilify their personal characters) be permitted to retain their seats on the
Civil Commission, the executive body of the Philippine Government, without an investigation?

xxx xxx xxx

It is a notorious fact that many branches of the Government organized by the Civil
Commission are rotten and corrupt. The fiscal system, upon which life, liberty, and justice
depends, is admitted by the Attorney-General himself to be most unsatisfactory. It is a fact
that the Philippine judiciary is far from being what it should. Neither fiscals nor judges can be
persuaded to convict insurgents when they wish to protect them.

xxx xxx xxx

Now we hear all sorts of reports as to rottenness existing in the province [of Tayabas], and
especially the northern end of it; it is said that it is impossible to secure the conviction of
lawbreakers and outlaws by the native justices, or a prosecution by the native fiscals.

xxx xxx xxx

The long and short of it is that Americans will not stand for an arbitrary government,
especially when evidences of carpetbagging and rumors of graft are too thick to be pleasant.

We do not understand that it is claimed that the defendants succeeded in establishing at the trial the
truth of any of the foregoing statements. The only question which we have considered is whether
their publication constitutes an offense under section 8 of Act No. 292, above cited.

Several allied offenses or modes of committing the same offense are defined in that section, viz: (1)
The uttering of seditious words or speeches; (2) the writing, publishing, or circulating of scurrilous
libels against the Government of the United States or the Insular Government of the Philippine
Islands; (3) the writing, publishing, or circulating of libels which tend to disturb or obstruct any lawful
officer in executing his office; (4) or which tend to instigate others to cabal or meet together for
unlawful purposes; (5) or which suggest or incite rebellious conspiracies or riots; (6) or which tend to
stir up the people against the lawful authorities or to disturb the peace of the community, the safety
and order of the Government; (7) knowingly concealing such evil practices.

The complaint appears to be framed upon the theory that a writing, in order to be punishable as a
libel under this section, must be of a scurrilous nature and directed against the Government of the
United States or the Insular Government of the Philippine Islands, and must, in addition, tend to
some one of the results enumerated in the section. The article in question is described in the
complaint as "a scurrilous libel against the Government of the United States and the Insular
Government of the Philippine Islands, which tends to obstruct the lawful officers of the United States
and the Insular Government of the Philippine Islands in the execution of their offices, and which
tends to instigate others to cabal and meet together for unlawful purposes, and which suggests and
incites rebellious conspiracies, and which tends to stir up the people against the lawful authorities,
and which disturbs the safety and order of the Government of the United States and the Insular
Government of the Philippine Islands." But it is "a well-settled rule in considering indictments that
where an offense may be committed in any of several different modes, and the offense, in any
particular instance, is alleged to have been committed in two or more modes specified, it is sufficient
to prove the offense committed in any one of them, provided that it be such as to constitute the
substantive offense" (Com. vs. Kneeland, 20 Pick., Mass., 206, 215), and the defendants may,
therefore, be convicted if any one of the substantive charges into which the complaint may be
separated has been made out.

We are all, however, agreed upon the proposition that the article in question has no appreciable
tendency to "disturb or obstruct any lawful officer in executing his office," or to "instigate" any person
or class of persons "to cabal or meet together for unlawful purposes," or to "suggest or incite
rebellious conspiracies or riots," or to "stir up the people against the lawful authorities or to disturb
the peace of the community, the safety and order of the Government." All these various tendencies,
which are described in section 8 of Act No. 292, each one of which is made an element of a certain
form of libel, may be characterized in general terms as seditious tendencies. This is recognized in
the description of the offenses punished by this section, which is found in the title of the act, where
they are defined as the crimes of the "seditious utterances, whether written or spoken."

Excluding from consideration the offense of publishing "scurrilous libels against the Government of
the United States or the Insular Government of the Philippine Islands," which may conceivably stand
on a somewhat different footing, the offenses punished by this section all consist in inciting, orally or
in writing, to acts of disloyalty or disobedience to the lawfully constituted authorities in these Islands.
And while the article in question, which is, in the main, a virulent attack against the policy of the Civil
Commission in appointing natives to office, may have had the effect of exciting among certain
classes dissatisfaction with the Commission and its measures, we are unable to discover anything in
it which can be regarded as having a tendency to produce anything like what may be called
disaffection, or, in other words, a state of feeling incompatible with a disposition to remain loyal to
the Government and obedient to the laws. There can be no conviction, therefore, for any of the
offenses described in the section on which the complaint is based, unless it is for the offense of
publishing a scurrilous libel against the Government of the of the United States or the Insular
Government of the Philippine Islands.

Can the article be regarded as embraced within the description of "scurrilous libels against the
Government of the United States or the Insular Government of the Philippine Islands?" In the
determination of this question we have encountered great difficulty, by reason of the almost entire
lack of American precedents which might serve as a guide in the construction of the law. There are,
indeed, numerous English decisions, most of them of the eighteenth century, on the subject of
libelous attacks upon the "Government, the constitution, or the law generally," attacks upon the
Houses of Parliament, the Cabinet, the Established Church, and other governmental organisms, but
these decisions are not now accessible to us, and, if they were, they were made under such different
conditions from those which prevail at the present day, and are founded upon theories of
government so foreign to those which have inspired the legislation of which the enactment in
question forms a part, that they would probably afford but little light in the present inquiry. In
England, in the latter part of the eighteenth century, any "written censure upon public men for their
conduct as such," as well as any written censure "upon the laws or upon the institutions of the
country," would probably have been regarded as a libel upon the Government. (2 Stephen, History of
the Criminal Law of England, 348.) This has ceased to be the law in England, and it is doubtful
whether it was ever the common law of any American State. "It is true that there are ancient dicta to
the effect that any publication tending to "possess the people with an ill opinion of the Government"
is a seditious libel ( per Holt, C. J., in R. vs. Tuchin, 1704, 5 St. Tr., 532, and Ellenborough, C. J., in
R. vs. Cobbett, 1804, 29 How. St. Tr., 49), but no one would accept that doctrine now. Unless the
words used directly tend to foment riot or rebellion or otherwise to disturb the peace and tranquility of
the Kingdom, the utmost latitude is allowed in the discussion of all public affairs." (11 Enc. of the
Laws of England, 450.) Judge Cooley says (Const. Lim., 528): "The English common law rule which
made libels on the constitution or the government indictable, as it was administered by the courts,
seems to us unsuited to the condition and circumstances of the people of America, and therefore
never to have been adopted in the several States."

We find no decisions construing the Tennessee statute (Code, sec. 6663), which is apparently the
only existing American statute of a similar character to that in question, and from which much of the
phraseology of then latter appears to have been taken, though with some essential modifications.

The important question is to determine what is meant in section 8 of Act No. 292 by the expression
"the Insular Government of the Philippine Islands." Does it mean in a general and abstract sense the
existing laws and institutions of the Islands, or does it mean the aggregate of the individuals by
whom the government of the Islands is, for the time being, administered? Either sense would
doubtless be admissible.

We understand, in modern political science, . . . by the term government, that institution or aggregate
of institutions by which an independent society makes and carries out those rules of action which are
unnecessary to enable men to live in a social state, or which are imposed upon the people forming
that society by those who possess the power or authority of prescribing them. Government is the
aggregate of authorities which rule a society. By "dministration, again, we understand in modern
times, and especially in more or less free countries, the aggregate of those persons in whose hands
the reins of government are for the time being (the chief ministers or heads of departments)."
(Bouvier, Law Dictionary, 891.) But the writer adds that the terms "government" and "administration"
are not always used in their strictness, and that "government" is often used for "administration."

In the act of Congress of July 14, 1798, commonly known as the "Sedition Act," it is made an offense
to "write, print, utter, or published," or to "knowingly and willingly assist or aid in writing, printing,
uttering, or publishing any false, scandalous, and malicious writing or writings against the
Government of the United States, or either House of the Congress of the United States, or the
President of the United States, with intent to defame the said Government, or either House of the
said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute,
or to excite against them or either or any of them the hatred of the good people of the United States,"
etc. The term "government" would appear to be used here in the abstract sense of the existing
political system, as distinguished from the concrete organisms of the Government — the Houses of
Congress and the Executive — which are also specially mentioned.

Upon the whole, we are of the opinion that this is the sense in which the term is used in the
enactment under consideration.

It may be said that there can be no such thing as a scurrilous libel, or any sort of a libel, upon an
abstraction like the Government in the sense of the laws and institutions of a country, but we think
an answer to this suggestion is that the expression "scurrilous libel" is not used in section 8 of Act
No. 292 in the sense in which it is used in the general libel law (Act No. 277) — that is, in the sense
of written defamation of individuals — but in the wider sense, in which it is applied in the common
law to blasphemous, obscene, or seditious publications in which there may be no element of
defamation whatever. "The word 'libel' as popularly used, seems to mean only defamatory words;
but words written, if obscene, blasphemous, or seditious, are technically called libels, and the
publication of them is, by the law of England, an indictable offense." (Bradlaugh vs. The Queen, 3 Q.
B. D., 607, 627, per Bramwell L. J. See Com. vs. Kneeland, 20 Pick., 206, 211.)

While libels upon forms of government, unconnected with defamation of individuals, must in the
nature of things be of uncommon occurrence, the offense is by no means an imaginary one. An
instance of a prosecution for an offense essentially of this nature is Republica vs. Dennie, 4 Yeates
(Pa.), 267, where the defendant was indicted "as a factious and seditious person of a wicked mind
and unquiet and turbulent disposition and conversation, seditiously, maliciously, and willfully
intending, as much as in him lay, to bring into contempt and hatred the independence of the United
States, the constitution of this Commonwealth and of the United States, to excite popular discontent
and dissatisfaction against the scheme of polity instituted, and upon trial in the said United States
and in the said Commonwealth, to molest, disturb, and destroy the peace and tranquility of the said
United States and of the said Commonwealth, to condemn the principles of the Revolution, and
revile, depreciate, and scandalize the characters of the Revolutionary patriots and statesmen, to
endanger, subvert, and totally destroy the republican constitutions and free governments of the said
United States and this Commonwealth, to involve the said United States and this Commonwealth in
civil war, desolation, and anarchy, and to procure by art and force a radical change and alteration in
the principles and forms of the said constitutions and governments, without the free will, wish, and
concurrence of the people of the said United States and this Commonwealth, respectively," the
charge being that "to fulfill, perfect, and bring to effect his wicked, seditious, and detestable
intentions aforesaid he . . . falsely, maliciously, factiously, and seditiously did make, compose, write,
and publish the following libel, to wit; 'A democracy is scarcely tolerable at any period of national
history. Its omens are always sinister and its powers are unpropitious. With all the lights or
experience blazing before our eyes, it is impossible not to discover the futility of this form of
government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has
been tried in France and terminated in despotism. it was tried in England and rejected with the
utmost loathing and abhorrence. It is on its trial here and its issue will be civil war, desolation, and
anarchy. No wise man but discerns its imperfections; no good man but shudders at its miseries; no
honest man but proclaims its fraud, and no brave man but draws his sword against its force. The
institution of a scheme of polity so radically contemptible and vicious is a memorable example of
what the villainy of some men can devise, the folly of others receive, and both establish, in despite of
reason, reflection, and sensation.'"

An attack upon the lawfully established system of civil government in the Philippine Islands, like that
which Dennie was accused of making upon the republican form of government lawfully established
in the United States and in the State of Pennsylvania would, we think, if couched in scandalous
language, constitute the precise offense described in section 8 of Act No. 292 as a scurrilous libel
against the Insular Government of the Philippine Islands.

Defamation of individuals, whether holding official positions or not, and whether directed to their
public conduct or to their private life, may always be adequately punished under the general libel
law. Defamation of the Civil Commission as an aggregation, it being "a body of persons definite and
small enough for its individual members to be recognized as such" (Stephen, Digest of the Criminal
Law, art. 277), as well as defamation of any of the individual members of the Commission or of the
Civil Governor, either in his public capacity or as a private individual, may be so punished. The
general libel law enacted by the Commission was in force when Act No. 292, was passed. There
was no occasion for any further legislation on the subject of libels against the individuals by whom
the Insular Government is administered — against the Insular Government in the sense of the
aggregate of such individuals. There was occasion for stringent legislation against seditious words or
libels, and that is the main if not the sole purpose of the section under consideration. It is not
unreasonable to suppose that the Commission, in enacting this section, may have conceived of
attacks of a malignant or scurrilous nature upon the existing political system of the United States, or
the political system established in these Islands by the authority of the United States, as necessarily
of a seditious tendency, but it is not so reasonable to suppose that they conceived of attacks upon
the personnel of the government as necessarily tending to sedition. Had this been their view it
seems probable that they would, like the framers of the Sedition Act of 1798, have expressly and
specifically mentioned the various public officials and collegiate governmental bodies defamation of
which they meant to punish as sedition.

The article in question contains no attack upon the governmental system of the United States, and it
is quite apparent that, though grossly abusive as respects both the Commission as a body and some
of its individual members, it contains no attack upon the governmental system by which the authority
of the United States is enforced in these Islands. The form of government by a Civil Commission and
a Civil Governor is not assailed. It is the character of the men who are intrusted with the
administration of the government that the writer is seeking to bring into disrepute by impugning the
purity of their motives, their public integrity, and their private morals, and the wisdom of their policy.
The publication of the article, therefore, no seditious tendency being apparent, constitutes no offense
under Act No. 292, section 8.

The judgment of conviction is reversed and the defendants are acquitted, with costs de oficio.

Arellano, C.J. Torres, Willard and Mapa, JJ., concur.

 [G.R. No. L-9657. November 29, 1956.]
LEOPOLDO T. BACANI and MATEO A. MATOTO, Plaintiffs-Appellees, vs. NATIONAL COCONUT
CORPORATION, ET AL., Defendants, NATIONAL COCONUT CORPORATION and BOARD OF
LIQUIDATORS, Defendants-Appellants.

DECISION
BAUTISTA ANGELO, J.:
Plaintiffs herein are court stenographers assigned in Branch VI of the Court of First Instance of Manila.
During the pendency of Civil Case No. 2293 of said court, entitled Francisco Sycip vs. National Coconut
Corporation, Assistant Corporate Counsel Federico Alikpala, counsel for Defendant, requested said
stenographers for copies of the transcript of the stenographic notes taken by them during the
hearing. Plaintiffs complied with the request by delivering to Counsel Alikpala the needed transcript
containing 714 pages and thereafter submitted to him their bills for the payment of their fees. The
National Coconut Corporation paid the amount of P564 to Leopoldo T. Bacani and P150 to Mateo A.
Matoto for said transcript at the rate of P1 per page.
Upon inspecting the books of this corporation, the Auditor General disallowed the payment of these fees
and sought the recovery of the amounts paid. On January 19, 1953, the Auditor General required
the Plaintiffs to reimburse said amounts on the strength of a circular of the Department of Justice wherein
the opinion was expressed that the National Coconut Corporation, being a government entity, was
exempt from the payment of the fees in question. On February 6, 1954, the Auditor General issued an
order directing the Cashier of the Department of Justice to deduct from the salary of Leopoldo T. Bacani
the amount of P25 every payday and from the salary of Mateo A. Matoto the amount of P10 every payday
beginning March 30, 1954. To prevent deduction of these fees from their salaries and secure a judicial
ruling that the National Coconut Corporation is not a government entity within the purview of section 16,
Rule 130 of the Rules of Court, this action was instituted in the Court of First Instance of Manila.
Defendants set up as a defense that the National Coconut Corporation is a government entity within the
purview of section 2 of the Revised Administrative Code of 1917 and, hence, it is exempt from paying the
stenographers’ fees under Rule 130 of the Rules of Court. After trial, the court found for
the Plaintiffs declaring (1) “that Defendant National Coconut Corporation is not a government entity
within the purview of section 16, Rule 130 of the Rules of Court; (2) that the payments already made
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by said Defendant to Plaintiffs herein and received by the latter from the former in the total amount of
P714, for copies of the stenographic transcripts in question, are valid, just and legal; and (3) chan roble svirtualawlibrary

that Plaintiffs are under no obligation whatsoever to make a refund of these payments already received
by them.” This is an appeal from said decision.
Under section 16, Rule 130 of the Rules of Court, the Government of the Philippines is exempt from paying
the legal fees provided for therein, and among these fees are those which stenographers may charge for
the transcript of notes taken by them that may be requested by any interested person (section 8). The
fees in question are for the transcript of notes taken during the hearing of a case in which the National
Coconut Corporation is interested, and the transcript was requested by its assistant corporate counsel for
the use of said corporation.
On the other hand, section 2 of the Revised Administrative Code defines the scope of the term
“Government of the Republic of the Philippines” as follows: chanroble svirtuallawlibrary
“‘The Government of the Philippine Islands’ is a term which refers to the corporate governmental entity
through which the functions of government are exercised throughout the Philippine Islands, including,
save as the contrary appears from the context, the various arms through which political authority is made
effective in said Islands, whether pertaining to the central Government or to the provincial or municipal
branches or other form of local government.”
The question now to be determined is whether the National Coconut Corporation may be considered as
included in the term “Government of the Republic of the Philippines” for the purposes of the exemption
of the legal fees provided for in Rule 130 of the Rules of Court.
As may be noted, the term “Government of the Republic of the Philippines” refers to a government entity
through which the functions of government are exercised, including the various arms through which
political authority is made effective in the Philippines, whether pertaining to the central government or
to the provincial or municipal branches or other form of local government. This requires a little digression
on the nature and functions of our government as instituted in our Constitution.
To begin with, we state that the term “Government” may be defined as “that institution or aggregate of
institutions by which an independent society makes and carries out those rules of action which are
necessary to enable men to live in a social state, or which are imposed upon the people forming that
society by those who possess the power or authority of prescribing them” (U.S. vs. Dorr, 2 Phil., 332). This
institution, when referring to the national government, has reference to what our Constitution has
established composed of three great departments, the legislative, executive, and the judicial, through
which the powers and functions of government are exercised. These functions are twofold: constitute chanroblesvirtuallawlibrary

and ministrant. The former are those which constitute the very bonds of society and are compulsory in
nature; the latter are those that are undertaken only by way of advancing the general interests of
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society, and are merely optional. President Wilson enumerates the constituent functions as follows: chanroblesvirtuallawlibrary

“‘(1) The keeping of order and providing for the protection of persons and property from violence and
robbery.
‘(2) The fixing of the legal relations between man and wife and between parents and children.
‘(3) The regulation of the holding, transmission, and interchange of property, and the determination of
its liabilities for debt or for crime.
‘(4) The determination of contract rights between individuals.
‘(5) The definition and punishment of crime.
‘(6) The administration of justice in civil cases.
‘(7) The determination of the political duties, privileges, and relations of citizens.
‘(8) Dealings of the state with foreign powers: the preservation of the state from external danger or
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encroachment and the advancement of its international interests.’“ (Malcolm, The Government of the
Philippine Islands, p. 19.)
The most important of the ministrant functions are: public works, public education, public charity,
chanrobl esvirtuallawlibrary

health and safety regulations, and regulations of trade and industry. The principles deter mining whether
or not a government shall exercise certain of these optional functions are: (1) that a government should chanroblesvirtuallawlibrary

do for the public welfare those things which private capital would not naturally undertake and (2) that a
government should do these things which by its very nature it is better equipped to administer for the
public welfare than is any private individual or group of individuals. (Malcolm, The Government of the
Philippine Islands, pp. 19-20.)
From the above we may infer that, strictly speaking, there are functions which our government is required
to exercise to promote its objectives as expressed in our Constitution and which are exercised by it as an
attribute of sovereignty, and those which it may exercise to promote merely the welfare, progress and
prosperity of the people. To this latter class belongs the organization of those corporations owned or
controlled by the government to promote certain aspects of the economic life of our people such as the
National Coconut Corporation. These are what we call government-owned or controlled corporations
which may take on the form of a private enterprise or one organized with powers and formal
characteristics of a private corporations under the Corporation Law.
The question that now arises is: Does the fact that these corporation perform certain functions of
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government make them a part of the Government of the Philippines?

The answer is simple: they do not acquire that status for the simple reason that they do not come under
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the classification of municipal or public corporation. Take for instance the National Coconut Corporation.
While it was organized with the purpose of “adjusting the coconut industry to a position independent of
trade preferences in the United States” and of providing “Facilities for the better curing of copra products
and the proper utilization of coconut by-products”, a function which our government has chosen to
exercise to promote the coconut industry, however, it was given a corporate power separate and distinct
from our government, for it was made subject to the provisions of our Corporation Law in so far as its
corporate existence and the powers that it may exercise are concerned (sections 2 and 4, Commonwealth
Act No. 518). It may sue and be sued in the same manner as any other private corporations, and in this
sense it is an entity different from our government. As this Court has aptly said, “The mere fact that the
Government happens to be a majority stockholder does not make it a public corporation” (National Coal
Co. vs. Collector of Internal Revenue, 46 Phil., 586-587). “By becoming a stockholder in the National Coal
Company, the Government divested itself of its sovereign character so far as respects the transactions of
the corporation . Unlike the Government, the corporation may be sued without its consent, and is subject
cralaw

to taxation. Yet the National Coal Company remains an agency or instrumentality of government.”
(Government of the Philippine Islands vs. Springer, 50 Phil., 288.)
To recapitulate, we may mention that the term “Government of the Republic of the Philippines” used in
section 2 of the Revised Administrative Code refers only to that government entity through which the
functions of the government are exercised as an attribute of sovereignty, and in this are included those
arms through which political authority is made effective whether they be provincial, municipal or other
form of local government. These are what we call municipal corporations. They do not include
government entities which are given a corporate personality separate and distinct from the government
and which are governed by the Corporation Law. Their powers, duties and liabilities have to be determined
in the light of that law and of their corporate charters. They do not therefore come within the exemption
clause prescribed in section 16, Rule 130 of our Rules of Court.
“Public corporations are those formed or organized for the government of a portion of the State.” (Section
3, Republic Act No. 1459, Corporation Law).
“‘The generally accepted definition of a municipal corporation would only include organized cities and
towns, and like organizations, with political and legislative powers for the local, civil government and
police regulations of the inhabitants of the particular district included in the boundaries of the
corporation.’ Heller vs. Stremmel, 52 Mo. 309, 312.”
“In its more general sense the phrase ‘municipal corporation’ may include both towns and counties, and
other public corporations created by government for political purposes. In its more common and limited
signification, it embraces only incorporated villages, towns and cities. Dunn vs. Court of County Revenues,
85 Ala. 144, 146, 4 So. 661.” (McQuillin, Municipal Corporations, 2nd ed., Vol. 1, p. 385.)
“We may, therefore, define a municipal corporation in its historical and strict sense to be the
incorporation, by the authority of the government, of the inhabitants of a particular place or district, and
authorizing them in their corporate capacity to exercise subordinate specified powers of legislation and
regulation with respect to their local and internal concerns. This power of local government is the
distinctive purpose and the distinguishing feature of a municipal corporation proper.” (Dillon, Municipal
Corporations, 5th ed., Vol. I, p. 59.)
It is true that under section 8, Rule 130, stenographers may only charge as fees P0.30 for each page of
transcript of not less than 200 words before the appeal is taken and P0.15 for each page after the filing of
the appeal, but in this case the National Coconut Corporation has agreed and in fact has paid P1.00 per
page for the services rendered by the Plaintiffs and has not raised any objection to the amount paid until
its propriety was disputed by the Auditor General. The payment of the fees in question became therefore
contractual and as such is valid even if it goes beyond the limit prescribed in section 8, Rule 130 of the
Rules of Court.
As regards the question of procedure raised by Appellants, suffice it to say that the same is insubstantial,
considering that this case refers not to a money claim disapproved by the Auditor General but to an action
of prohibition the purpose of which is to restrain the officials concerned from deducting from Plaintiffs’
salaries the amount paid to them as stenographers’ fees. This case does not come under section 1, Rule
45 of the Rules of Court relative to appeals from a decision of the Auditor General.
Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ.,
concur.
G.R. No. L-21484 November 29, 1969

THE AGRICULTURAL CREDIT and COOPERATIVE FINANCING ADMINISTRATION

(ACCFA), petitioner,
vs.
ACCFA SUPERVISORS' ASSOCIATION, ACCFA WORKERS' ASSOCIATION, and THE COURT
OF INDUSTRIAL RELATIONS, respondents.

Deogracias E. Lerma and Esmeraldo U. Guloy for petitioner Agricultural Credit and Cooperative
Financing Administration.
Office of the Agrarian Counsel, Department of Justice for petitioner Agricultural Credit Administration
J. C. Espinas and Associates for respendents Confederation of Unions in Government Corporations
Offices, et al. Mariano B. Tuason for respondent Court of Industrial Relations.

MAKALINTAL, J.:

These are two separate appeals by certiorari from the decision dated March 25, 1963 (G.R. No. L-
21484) and the order dated May 21, 1964 (G.R. No. L-23605) as affirmed by the resolutions en
banc, of the Court of Industrial Relations, in Cases Nos. 3450-ULP and 1327-MC, respectively. The
parties, except the Confederation of Unions in Government Corporations and Offices (CUGCO),
being practically the same and the principal issues involved related, only one decision is now
rendered in these two cases.

The Agricultural Credit and Cooperative Financing Administration (ACCFA) was a government
agency created under Republic Act No. 821, as amended. Its administrative machinery was
reorganized and its name changed to Agricultural Credit Administration (ACA) under the Land
Reform Code (Republic Act No. 3844). On the other hand, the ACCFA Supervisors' Association
(ASA) and the ACCFA Workers' Association (AWA), hereinafter referred to as the Unions, are labor
organizations composed of the supervisors and the rank-and-file employees, respectively, in the
ACCFA (now ACA).

G.R. No. L-21484

On September 4, 1961 a collective bargaining agreement, which was to be effective for a period of
one (1) year from July 1, 1961, was entered into by and between the Unions and the ACCFA. A few
months thereafter, the Unions started protesting against alleged violations and non-implementation
of said agreement. Finally, on October 25, 1962 the Unions declared a strike, which was ended
when the strikers voluntarily returned to work on November 26, 1962.

On October 30, 1962 the Unions, together with its mother union, the Confederation of Unions in
Government Corporations and Offices (CUGCO), filed a complaint with the Court of Industrial
Relations against the ACCFA (Case No. 3450-ULP) for having allegedly committed acts of unfair
labor practice, namely: violation of the collective bargaining agreement in order to discourage the
members of the Unions in the exercise of their right to self-organization, discrimination against said
members in the matter of promotions, and refusal to bargain. The ACCFA denied the charges and
interposed as affirmative and special defenses lack of jurisdiction of the CIR over the case, illegality
of the bargaining contract, expiration of said contract and lack of approval by the office of the
President of the fringe benefits provided for therein. Brushing aside the foregoing defenses, the CIR
in its decision dated March 25, 1963 ordered the ACCFA:

1. To cease and desist from committing further acts tending to discourage the members of
complainant unions in the exercise of their right to self-organization;
 2. To comply with and implement the provision of the collective bargaining contract executed
on September 4, 1961, including the payment of P30.00 a month living allowance;

3. To bargain in good faith and expeditiously with the herein complainants.

The ACCFA moved to reconsider but was turned down in a resolution dated April 25, 1963 of the
CIR en banc. Thereupon it brought this appeal by certiorari.

The ACCFA raises the following issues in its petition, to wit:

1. Whether or not the respondent court has jurisdiction over this case, which in turn depends
on whether or not ACCFA exercised governmental or proprietary functions.

2. Whether or not the collective bargaining agreement between the petitioner and the
respondent union is valid; if valid, whether or not it has already lapsed; and if not, whether or
not its (sic) fringe benefits are already enforceable.

3. Whether or not there is a legal and/or factual basis for the finding of the respondent court
that the petitioner had committed acts of unfair labor practice.

4. Whether or not it is within the competence of the court to enforce the collective bargaining
agreement between the petitioner and the respondent unions, the same having already
expired.

G.R. No. L-23605

During the pendency of the above mentioned case (G.R. No. L-21484), specifically on August 8,
1963, the President of the Philippines signed into law the Agricultural Land Reform Code (Republic
Act No. 3844), which among other things required the reorganization of the administrative machinery
of the Agricultural Credit and Cooperative Financing Administration (ACCFA) and changed its name
to Agricultural Credit Administration (ACA). On March 17, 1964 the ACCFA Supervisors' Association
and the ACCFA Workers' Association filed a petition for certification election with the Court of
Industrial Relations (Case No. 1327-MC) praying that they be certified as the exclusive bargaining
agents for the supervisors and rank-and-file employees, respectively, in the ACA. The trial Court in
its order dated March 30, 1964 directed the Manager or Officer-in-Charge of the ACA to allow the
posting of said order "for the information of all employees and workers thereof," and to answer the
petition. In compliance therewith, the ACA, while admitting most of the allegations in the petition,
denied that the Unions represented the majority of the supervisors and rank-and-file workers,
respectively, in the ACA. It further alleged that the petition was premature, that the ACA was not the
proper party to be notified and to answer the petition, and that the employees and supervisors could
not lawfully become members of the Unions, nor be represented by them. However, in a joint
manifestation of the Unions dated May 7, 1964, with the conformity of the ACA Administrator and of
the Agrarian Counsel in his capacity as such and as counsel for the National Land Reform Council, it
was agreed "that the union petitioners in this case represent the majority of the employees in their
respective bargaining units" and that only the legal issues raised would be submitted for the
resolution of the trial Court.

Finding the remaining grounds for ACA's opposition to the petition to be without merit, the trial Court
in its order dated May 21, 1964 certified "the ACCFA Workers' Association and the ACCFA
Supervisors' Association as the sole and exclusive bargaining representatives of the rank-and-file
employees and supervisors, respectively, of the Agricultural Credit Administration." Said order was
affirmed by the CIR en banc in its resolution dated August 24, 1964.
On October 2, 1964 the ACA filed in this Court a petition for certiorari with urgent motion to stay the
CIR order of May 21, 1964. In a resolution dated October 6, 1964, this Court dismissed the petition
for "lack of adequate allegations," but the dismissal was later reconsidered when the ACA complied
with the formal requirement stated in said resolution. As prayed for, this Court ordered the CIR to
stay the execution of its order of May 21, 1964.

In this appeal, the ACA in effect challenges the jurisdiction of the CIR to entertain the petition of the
Unions for certification election on the ground that it (ACA) is engaged in governmental functions.
The Unions join the issue on this single point, contending that the ACA forms proprietary functions.

Under Section 3 of the Agricultural Land Reform Code the ACA was established, among other
governmental agencies,1 to extend credit and similar assistance to agriculture, in pursuance of the
policy enunciated in Section 2 as follows:

SEC. 2. Declaration of Policy. — It is the policy of the State:

(1) To establish owner-cultivatorships and the economic family-size farm as the basis of
Philippine agriculture and, as a consequence, divert landlord capital in agriculture to
industrial development;

(2) To achieve a dignified existence for the small farmers free from pernicious institutional
restraints and practices;

(3) To create a truly viable social and economic structure in agriculture conducive to greater
productivity and higher farm incomes;

(4) To apply all labor laws equally and without discrimination to both industrial and
agricultural wage earners;

(5) To provide a more vigorous and systematic land resettlement program and public land
distribution; and

(6) To make the small farmers more independent, self-reliant and responsible citizens, and a
source of genuine strength in our democratic society.

The implementation of the policy thus enunciated, insofar as the role of the ACA therein is
concerned, is spelled out in Sections 110 to 118, inclusive, of the Land Reform Code. Section 110
provides that "the administrative machinery of the ACCFA shall be reorganized to enable it to align
its activities with the requirements and objective of this Code and shall be known as the Agricultural
Credit Administration." Under Section 112 the sum of P150,000,000 was appropriated out of national
funds to finance the additional credit functions of the ACA as a result of the land reform program laid
down in the Code. Section 103 grants the ACA the privilege of rediscounting with the Central Bank,
the Development Bank of the Philippines and the Philippine National Bank. Section 105 directs the
loaning activities of the ACA "to stimulate the development of farmers' cooperatives," including those
"relating to the production and marketing of agricultural products and those formed to manage and/or
own, on a cooperative basis, services and facilities, such as irrigation and transport systems,
established to support production and/or marketing of agricultural products." Section 106 deals with
the extension by ACA of credit to small farmers in order to stimulate agricultural production. Sections
107 to 112 lay down certain guidelines to be followed in connection with the granting of loans, such
as security, interest and supervision of credit. Sections 113 to 118, inclusive, invest the ACA with
certain rights and powers not accorded to non-governmental entities, thus:
 SEC. 113. Auditing of Operations. — For the effective supervision of farmers' cooperatives,
the head of the Agricultural Credit Administration shall have the power to audit their
operations, records and books of account and to issue subpoena and subpoena duces
tecum to compel the attendance of witnesses and the production of books, documents and
records in the conduct of such audit or of any inquiry into their affairs. Any person who,
without lawful cause, fails to obey such subpoena or subpoena duces tecum shall, upon
application of the head of Agricultural Credit Administration with the proper court, be liable to
punishment for contempt in the manner provided by law and if he is an officer of the
Association, to suspension or removal from office.

SEC. 114. Prosecution of officials. — The Agricultural Credit Administration, through the
appropriate provincial or city fiscal, shall have the power to file and prosecute any and all
actions which it may have against any and all officials or employees of farmers' cooperatives
arising from misfeasance or malfeasance in office.

SEC. 115. Free Notarial Service. — Any justice of the peace, in his capacity as notary ex-
officio, shall render service free of charge to any person applying for a loan under this Code
either in administering the oath or in the acknowledgment of instruments relating to such
loan.

SEC. 116. Free Registration of Deeds. — Any register of deeds shall accept for registration,
free of charge any instrument relative to a loan made under this Code.

SEC. 117. Writing-off Unsecured and Outstanding Loans. — Subject to the approval of the
President upon recommendation of the Auditor General, the Agricultural Credit
Administration may write-off from its books, unsecured and outstanding loans and accounts
receivable which may become uncollectible by reason of the death or disappearance of the
debtor, should there be no visible means of collecting the same in the foreseeable future, or
where the debtor has been verified to have no income or property whatsoever with which to
effect payment. In all cases, the writing-off shall be after five years from the date the debtor
defaults.

SEC. 118. Exemption from Duties, Taxes and Levies. — The Agricultural Credit
Administration is hereby exempted from the payment of all duties, taxes, levies, and fees,
including docket and sheriff's fees, of whatever nature or kind, in the performance of its
functions and in the exercise of its powers hereunder.

The power to audit the operations of farmers' cooperatives and otherwise inquire into their affairs, as
given by Section 113, is in the nature of the visitorial power of the sovereign, which only a
government agency specially delegated to do so by the Congress may legally exercise.

On March 19, 1964 Executive Order No. 75 was promulgated. It is entitled: "Rendering in Full Force
and Effect the Plan of Reorganization Proposed by the Special Committee on Reorganization of
Agencies for Land Reform for the Administrative Machinery of the Agricultural Land Reform Code,"
and contains the following pertinent provisions:

Section 3. The Land Reform Project Administration2 shall be considered a single

organization and the personnel complement of the member agencies including the legal
officers of the Office of the Agrarian Counsel which shall provide legal services to the LRPA
shall be regarded as one personnel pool from which the requirements of the operations shall
be drawn and subject only to the civil service laws, rules and regulations, persons from one
 agency may be freely assigned to positions in another agency within the LRPA when the
interest of the service so demands.

Section 4. The Land Reform Project Administration shall be considered as one organization
with respect to the standardization of job descriptions position classification and wage and
salary structures to the end that positions involving the same or equivalent qualifications and
equal responsibilities and effort shall have the same remuneration.

Section 5. The Civil Service laws, rules and regulations with respect to promotions,
particularly in the consideration of person next in rank, shall be made applicable to the Land
Reform Project Administration as a single agency so that qualified individuals in one member
agency must be considered in considering promotion to higher positions in another member
agency.

The implementation of the land reform program of the government according to Republic Act No.
3844 is most certainly a governmental, not a proprietary, function; and for that purpose Executive
Order No. 75 has placed the ACA under the Land Reform Project Administration together with the
other member agencies, the personnel complement of all of which are placed in one single pool and
made available for assignment from one agency to another, subject only to Civil Service laws, rules
and regulations, position classification and wage structures.

The appointing authority in respect of the officials and employees of the ACA is the President of the
Philippines, as stated in a 1st indorsement by his office to the Chairman of the National Reform
Council dated May 22, 1964, as follows:

Appointments of officials and employees of the National Land Reform Council and its
agencies may be made only by the President, pursuant to the provisions of Section 79(D) of
the Revised Administrative Code. In accordance with the policy and practice, such
appointments should be prepared for the signature of the Executive Secretary, "By Authority
ofthe President".3

When the Agricultural Reform Code was being considered by the Congress, the nature of the ACA
was the subject of the following exposition on the Senate floor:

Senator Tolentino: . . . . "The ACA is not going to be a profit making institution. It is supposed
to be a public service of the government to the lessees and farmer-owners of the lands that
may be bought after expropriation from owners. It is the government here that is the lender.
The government should not exact a higher interest than what we are telling a private
landowner now in his relation to his tenants if we give to their farmers a higher rate of interest
. . . ." (pp. 17 & 18, Senate Journal No. 16, July 3, 1963)

The reason is obvious, to pinpoint responsibility for many losses in the government, in order to avoid
irresponsible lending of government money — to pinpoint responsibility for many losses . . . .

Senator Manglapus: ". . . But assuming that hypothesis, that is the reason why we are
appropriating P150,000,000.00 for the Agricultural Credit Administration which will go to
intensified credit operations on the barrio level . . ." (p. 3, Senate Journal No. 7).

That it is the reason why we are providing for the expansion of the ACCFA and the weeding out of
the cooperative activity of the ACCFA and turning this over to the Agricultural Productivity
Commission, so that the Agricultural Credit Administration will concentrate entirely on the facilitation
of credit on the barrio level with the massive support of 150 million provided by the government. . . .
(pp. 4 & 5 of Senate Journal No. 7, July 3, 1963)

. . . But by releasing them from this situation, we feel that we are putting them in a much better
condition than that in which they are found by providing them with a business-like way of obtaining
credit, not depending on a paternalistic system but one which is business-like — that is to say, a
government office, which on the barrio level will provide them that credit directly . . . . (p. 40, Senate
Journal No. 7, July 3, 1963) (emphasis supplied).

The considerations set forth above militate quite strongly against the recognition of collective
bargaining powers in the respondent Unions within the context of Republic Act No. 875, and hence
against the grant of their basic petition for certification election as proper bargaining units. The ACA
is a government office or agency engaged in governmental, not proprietary functions. These
functions may not be strictly what President Wilson described as "constituent" (as distinguished from
"ministrant"),4 such as those relating to the maintenance of peace and the prevention of crime, those
regulating property and property rights, those relating to the administration of justice and the
determination of political duties of citizens, and those relating to national defense and foreign
relations. Under this traditional classification, such constituent functions are exercised by the State
as attributes of sovereignty, and not merely to promote the welfare, progress and prosperity of the
people — these letter functions being ministrant he exercise of which is optional on the part of the
government.

The growing complexities of modern society, however, have rendered this traditional classification of
the functions of government quite unrealistic, not to say obsolete. The areas which used to be left to
private enterprise and initiative and which the government was called upon to enter optionally, and
only "because it was better equipped to administer for the public welfare than is any private
individual or group of individuals,"5 continue to lose their well-defined boundaries and to be absorbed
within activities that the government must undertake in its sovereign capacity if it is to meet the
increasing social challenges of the times. Here as almost everywhere else the tendency is
undoubtedly towards a greater socialization of economic forces. Here of course this development
was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of
principle concerning the promotion of social justice.

It was in furtherance of such policy that the Land Reform Code was enacted and the various
agencies, the ACA among them, established to carry out its purposes. There can be no dispute as to
the fact that the land reform program contemplated in the said Code is beyond the capabilities of any
private enterprise to translate into reality. It is a purely governmental function, no less than, say, the
establishment and maintenance of public schools and public hospitals. And when, aside from the
governmental objectives of the ACA, geared as they are to the implementation of the land reform
program of the State, the law itself declares that the ACA is a government office, with the formulation
of policies, plans and programs vested no longer in a Board of Governors, as in the case of the
ACCFA, but in the National Land Reform Council, itself a government instrumentality; and that its
personnel are subject to Civil Service laws and to rules of standardization with respect to positions
and salaries, any vestige of doubt as to the governmental character of its functions disappears.

In view of the foregoing premises, we hold that the respondent Unions are not entitled to the
certification election sought in the Court below. Such certification is admittedly for purposes of
bargaining in behalf of the employees with respect to terms and conditions of employment, including
the right to strike as a coercive economic weapon, as in fact the said unions did strike in 1962
against the ACCFA (G.R. No. L-21824).6 This is contrary to Section 11 of Republic Act No. 875,
which provides:
 SEC. 11. Prohibition Against Strike in the Government — The terms and conditions of
employment in the Government, including any political subdivision or instrumentality thereof,
are governed by law and it is declared to be the policy of this Act that employees therein
shall not strike for the purposes of securing changes or modification in their terms and
conditions of employment. Such employees may belong to any labor organization which
does not impose the obligation to strike or to join in strike: Provided, However, that this
section shall apply only to employees employed in governmental functions of the
Government including but not limited to governmental corporations.7

With the reorganization of the ACCFA and its conversion into the ACA under the Land Reform Code
and in view of our ruling as to the governmental character of the functions of the ACA, the decision
of the respondent Court dated March 25, 1963, and the resolution en banc affirming it, in the unfair
labor practice case filed by the ACCFA, which decision is the subject of the present review in G. R.
No. L-21484, has become moot and academic, particularly insofar as the order to bargain
collectively with the respondent Unions is concerned.

What remains to be resolved is the question of fringe benefits provided for in the collective
bargaining contract of September 4, 1961. The position of the ACCFA in this regard is that the said
fringe benefits have not become enforceable because the condition that they should first be
approved by the Office of the President has not been complied with. The Unions, on the other hand,
contend that no such condition existed in the bargaining contract, and the respondent Court upheld
this contention in its decision.

It is to be listed that under Section 3, Article XIV, of the agreement, the same "shall not become
effective unless and until the same is duly ratified by the Board of Governors of the Administration."
Such approval was given even before the formal execution of the agreement, by virtue of
"Resolution No. 67, Regular Meeting No. 7, FY 1960-61, held on August 17, 1961," but with the
proviso that "the fringe benefits contained therein shall take effect only if approved by the office of
the President." The condition is, therefore, deemed to be incorporated into the agreement by
reference.

On October 23, 1962 the Office of the President, in a letter signed by the Executive Secretary,
expressed its approval of the bargaining contract "provided the salaries and benefits therein fixed
are not in conflict with applicable laws and regulations, are believed to be reasonable considering
the exigencies of the service and the welfare of the employees, and are well within the financial
ability of the particular corporation to bear."

On July 1, 1963 the ACCFA management and the Unions entered into an agreement for the
implementation of the decision of the respondent Court concerning the fringe benefits, thus:

In the meantime, only Cost of Living Adjustment, Longevity Pay, and Night Differential
Benefits accruing from July 1, 1961 to June 30, 1963 shall be paid to all employees entitled
thereto, in the following manner:

A) The sum of P180,000 shall be set aside for the payment of:

1) Night differential benefits for Security Guards.

2) Cost of Living Adjustment and Longevity Pay.

3) The unpaid balance due employees on Item A (1) and (2) this paragraph shall be paid in
monthly installments as finances permit but not beyond December 20, 1963.
 3. All benefits accruing after July 1, 1963, shall be allowed to accumulate but payable only
after all benefits accruing up to June 30, 1963, as per CIR decision hereinabove referred to
shall have been settled in full; provided, however, that commencing July 1, 1963 and for a
period of only two (2) months thereafter (during which period the ACCFA and the Unions
shall negotiate a new Collective Bargaining Agreement) the provisions of the September 4,
1961 Collective Bargaining Agreement shall be temporarily suspended, except as to Cost of
Living Adjustment and "political" or non-economic privileges and benefits thereunder.

On July 24, 1963 the ACCFA Board of Governors ratified the agreement thus entered into, pursuant
to the provision thereof requiring such ratification, but with the express qualification that the same
was "without prejudice to the pending appeal in the Supreme Court . . . in Case No. 3450-ULP." The
payment of the fringe benefits agreed upon, to our mind, shows that the same were within the
financial capability of the ACCFA then, and hence justifies the conclusion that this particular
condition imposed by the Office of the President in its approval of the bargaining contract was
satisfied.

We hold, therefore, that insofar as the fringe benefits already paid are concerned, there is no reason
to set aside the decision of the respondent Court, but that since the respondent Unions have no right
to the certification election sought by them nor, consequently, to bargain collectively with the
petitioner, no further fringe benefits may be demanded on the basis of any collective bargaining
agreement.

The decisions and orders appealed from are set aside and/or modified in accordance with the
foregoing pronouncements. No costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Castro, Teehankee and Barredo, JJ., concur.
Zaldivar, J., concurs in the result.

Separate Opinions

FERNANDO, J., concurring:

The decision reached by this Court so ably given expression in the opinion of Justice Makalintal,
characterized with vigor, clarity and precision, represents what for me is a clear tendency not to be
necessarily bound by our previous pronouncements on what activities partake of a nature that is
governmental.1 Of even greater significance, there is a definite rejection of the "constituent-
ministrant" criterion of governmental functions, followed in Bacani v. National Coconut
Corporation.2 That indeed is cause for gratification. For me at least, there is again full adherence to
the basic philosophy of the Constitution as to the extensive and vast power lodged in our
government to cope with the social and economic problems that even now sorely beset us. There is
therefore full concurrence on my part to the opinion of the Court, distinguished by its high quality of
juristic craftsmanship. I feel however that the matter is of such vital importance that a separate
concurring opinion is not inappropriate. It will also serve to give expression to my view, which is that
of the Court likewise, that our decision today does not pass upon the rights of labor employed in
instrumentalities of the state discharging governmental functions.

1. In the above Bacani decision, governmental functions are classified into constituent and
ministrant. "The former are those which constitute the very bonds of society and are compulsory in
nature; the latter are those that are undertaken only by way of advancing the general interests of
society, and are merely optional. President Wilson enumerates the constituent functions as follows:
'(1) The keeping of order and providing for the protection of persons and property from violence and
robbery. (2) The fixing of the legal relations between man and wife and between parents and
children. (3) The regulation of the holding, transmission, and interchange of property, and the
determination of its liabilities for debt or for crime. (4) The determination of contract rights between
individuals. (5) The definition and punishment of crime. (6) The administration of justice in civil
cases. (7) The determination of the political duties, privileges, and relations of citizens. (8) Dealings
of the state with foreign powers: the preservation of the state from external danger or encroachment
and the advancement of its international interests.' "3

The ministrant functions were then enumerated, followed by a statement of the basis that would
justify engaging in such activities. Thus: "The most important of the ministrant functions are: public
works, public education, public charity, health and safety regulations, and regulations of trade and
industry. The principles determining whether or not a government shall exercise certain of these
optional functions are: (1) that a government should do for the public welfare those things which
private capital would not naturally undertake and (2) that a government should do these things which
by its very nature it is better equipped to administer for the public welfare than is any private
individual or group of individuals."4

Reference is made in the Bacani decision to the first of the many publications of Justice Malcolm on
the Philippine government, which appeared in 1916,5 adopting the formulation of the then Professor,
later President, Woodrow Wilson of the United States, in a textbook on political science the first
edition of which was published in 1898. The Wilson classification reflected the primacy of the
dominant laissez-faire concept carried into the sphere of government.

A most spirited defense of such a view was given by former President Hadley of Yale in a series of
three lectures delivered at Oxford University in 1914. According to President Hadley: "I shall begin
with a proposition which may sound somewhat startling, but which I believe to be literally true. The
whole American political and social system is based on industrial property right, far more completely
than has ever been the case in any European country. In every nation of Europe there has been a
certain amount of traditional opposition between the government and the industrial classes. In the
United States no such tradition exists. In the public law of European communities industrial
freeholding is a comparatively recent development. In the United States, on the contrary, industrial
freeholding is the foundation on which the whole social order has been established and built up."6

The view is widely accepted that such a fundamental postulate did influence American court
decisions on constitutional law. As was explicitly stated by Justice Cardozo, speaking of that era:
"Laissez-faire was not only a counsel of caution which statesmen would do well to heed. It was a
categorical imperative which statesmen as well as judges, must obey."7 For a long time, legislation
tending to reduce economic inequality foundered on the rock that was the due process clause,
enshrining as it did the liberty of contract. To cite only one instance, the limitation of employment in
bakeries to sixty hours a week and ten hours a day under a New York statute was stricken down for
being tainted with a due process objection in Lochner v. New York.8 It provoked one of the most
vigorous dissents of Justice Holmes, who was opposed to the view that the United States
Constitution did embody laissez-faire. Thus: "General propositions do not decide concrete cases.
The decision will depend on a judgment or intuition more subtle than any articulate major premise.
But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every
opinion tends to become a law. I think that the word 'liberty,' in the 14th Amendment, is perverted
when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a
rational and fair man necessarily would admit that the statute proposed would infringe fundamental
principles as they have been understood by the traditions of our people and our law. It does not
need research to show that no such sweeping condemnation can be passed upon the statute before
us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly
could not pronounce unreasonable would uphold it as a first installment of a general regulation of the
hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it
unnecessary to discuss." It was not until 1908, in Muller v. Oregon,9 that the American Supreme
Court held valid a ten-hour maximum for women workers in laundries and not until 1917 in Bunting v.
Oregon10 that such a regulatory ten-hour law applied to men and women passed the constitutional
test.

Similarly, state legislation fixing minimum wages was deemed offensive to the due process clause in
a 1923 decision in Adkins v. Children's Hospital.11 Only in 1937, in the leading case of West Coast
Hotel v. Parrish,12 was the Adkins case overruled and a minimum wage law New York statute
upheld. The same unsympathetic attitude arising from the laissez-faire concept was manifest in
decisions during such period, there being the finely-spun distinctions in the Wolff Packing Co. v.
Court of Industrial Relations13 decision, as to when certain businesses could be classified as affected
with public interest to justify state regulation as to prices. After eleven years, in 1934, in Nebbia v.
New York,14 the air of unreality was swept away by this explicit pronouncement from the United
States Supreme Court: "The phrase 'affected with a public interest' can, in the nature of things, mean
no more than that an industry, for adequate reason, is subject to control for the public good."

It is thus apparent that until the administration of President Roosevelt, the laissez-faire principle
resulted in the contraction of the sphere where governmental entry was permissible. The object was
to protect property even if thereby the needs of the general public would be left unsatisfied. This was
emphatically put forth in a work of former Attorney General, later Justice, Jackson, citing an opinion
of Judge Van Orsdel. Thus: "It should be remembered that of the three fundamental principles which
underlie government, and for which government exists, the protection of life, liberty, and property,
the chief of these is property . . . ."15 The above excerpt from Judge Van Orsdel forms part of his
opinion in Children's Hospital v. Adkins, when decided by the Circuit Court of Appeals.16

Nonetheless, the social and economic forces at work in the United States to which the new deal
administration of President Roosevelt was most responsive did occasion, as of 1937, greater
receptivity by the American Supreme Court to a philosophy less rigid in its obeisance to property
rights. Earlier legislation deemed offensive to the laissez-faire concept had met a dismal fate. Their
nullity during his first term could, more often than not, be expected.17

As a matter of fact, even earlier, in 1935, Professor Coker of Yale, speaking as a historian, could
already discern a contrary drift. Even then he could assert that the range of governmental activity in
the United States had indeed expanded. According to him: "Thus both liberals and conservatives
approve wide and varied governmental intervention; the latter condemning it, it is true, when the
former propose it, but endorsing it, after it has become a fixed part of the status quo, as so beneficial
in its effects that no more of it is needed. Our history for the last half-century shows that each
important governmental intervention we have adopted has been called socialistic or communistic by
contemporary conservatives, and has later been approved by equally conservative men who now
accept it both for its proved benefits and for the worthy traditions it has come to represent. Both
liberal and conservative supporters of our large-scale business under private ownership advocate or
concede the amounts and kinds of governmental limitation and aid which they regard as necessary
to make the system work efficiently and humanely. Sooner or later, they are willing to have
government intervene for the purpose of preventing the system from being too oppressive to the
masses of the people, protecting it from its self-destructive errors, and coming to its help in other
ways when it appears not to be able to take care of itself."18

At any rate, by 1943, the United States was reconciled to laissez-faire having lost its dominance. In
the language of Justice Jackson in the leading case of West Virginia State Board of Education v.
Barnette:19 "We must transplant these rights to a soil in which the laissez-faire concept or principle of
non-interference has withered at least as to economic affairs, and social advancements are
increasingly sought through closer integration of society and through expanded and strengthened
governmental controls."

2. The influence exerted by American constitutional doctrines unavoidable when the Philippines was
still under American rule notwithstanding, an influence that has not altogether vanished even after
independence, the laissez-faire principle never found full acceptance in this jurisdiction, even during
the period of its full flowering in the United States. Moreover, to erase any doubts, the Constitutional
Convention saw to it that our fundamental law embodies a policy of the responsibility thrust on
government to cope with social and economic problems and an earnest and sincere commitment to
the promotion of the general welfare through state action. It would thus follow that the force of any
legal objection to regulatory measures adversely affecting property rights or to statutes organizing
public corporations that may engage in competition with private enterprise has been blunted. Unless
there be a clear showing of any invasion of rights guaranteed by the Constitution, their validity is a
foregone conclusion. No fear need be entertained that thereby spheres hitherto deemed outside
government domain have been enchroached upon. With our explicit disavowal of the "constituent-
ministrant" test, the ghost of the laissez-faire concept no longer stalks the juridical stage.

As early as 1919, in the leading case of Rubi V. Provincial Board of Mindoro,20 Justice Malcolm
already had occasion to affirm: "The doctrines of laissez-faire and of unrestricted freedom of the
individual, as axioms of economic and political theory, are of the past. The modern period has shown
a widespread belief in the amplest possible demonstration of governmental activity. The Courts
unfortunately have sometimes seemed to trail after the other two branches of the Government in this
progressive march."

It was to be expected then that when he spoke for the Court in Government of the Philippine Islands
v. Springer,21 a 1927 decision, he found nothing objectionable in the government itself organizing
and investing public funds in such corporations as the National Coal Co., the Phil. National Bank, the
National Petroleum Co., the National Development Co., the National Cement Co. and the National
Iron Co. There was not even a hint that thereby the laissez-faire concept was not honored at all. It is
true that Justice Malcolm concurred with the majority in People v. Pomar,22 a 1924 opinion, which
held invalid under the due process clause a provision providing for maternity leave with pay thirty
days before and thirty days after confinement. It could be that he had no other choice as the
Philippines was then under the United States, and only recently the year before, the above-cited
case of Adkins v. Children's Hospital,23 in line with the laissez-faire principle, did hold that a statute
providing for minimum wages was constitutionally infirm on the same ground.

Our constitution which took effect in 1935, upon the inauguration of the Commonwealth of the
Philippines, erased whatever doubts there might be on that score. Its philosophy is antithetical to
the laissez-faire concept. Delegate, later President, Manuel Roxas, one of the leading members of
the Constitutional Convention, in answer precisely to an objection of Delegate Jose Reyes of
Sorsogon, who noted the "vast extensions in the sphere of governmental functions" and the "almost
unlimited power to interfere in the affairs of industry and agriculture as well as to compete with
existing business" as "reflections of the fascination exerted by [the then] current tendencies" in other
jurisdictions,24 spoke thus: "My answer is that this constitution has a definite and well defined
philosophy, not only political but social and economic. A constitution that in 1776 or in 1789 was
sufficient in the United States, considering the problems they had at that time, may not now be
sufficient with the growing and ever-widening complexities of social and economic problems and
relations. If the United States of America were to call a constitutional convention today to draft a
constitution for the United States, does any one doubt that in the provisions of that constitution there
will be found definite declarations of policy as to economic tendencies; that there will be matters
which are necessary in accordance with the experience of the American people during these years
when vast organizations of capital and trade have succeeded to a certain degree to control the life
and destiny of the American people? If in this constitution the gentleman will find declarations of
economic policy, they are there because they are necessary to safeguard the interests and welfare
of the Filipino people because we believe that the days have come when in self-defense, a nation
may provide in its constitution those safeguards, the patrimony, the freedom to grow, the freedom to
develop national aspirations and national interests, not to be hampered by the artificial boundaries
which a constitutional provision automatically imposes."25

Delegate Roxas continued further: "The government is the creature of the people and the
government exercises its powers and functions in accordance with the will and purposes of the
people. That is the first principle, the most important one underlying this document. Second, the
government established in this document is, in its form, in our opinion, the most adapted to
prevailing conditions, circumstances and the political outlook of the Filipino people. Rizal said, 'Every
people has the kind of government that they deserve.' That is just another form of expressing the
principle in politics enunciated by the French philosophers when they said: 'Every people has the
right to establish the form of government which they believe is most conducive to their welfare and
their liberty.' Why have we preferred the government that is established in this draft? Because it is
the government with which we are familiar. It is the form of government fundamentally such as it
exists today; because it is the only kind of government that our people understand; it is the kind of
government we have found to be in consonance with our experience, with the necessary
modification, capable of permitting a fair play of social forces and allowing the people to conduct the
affairs of that government."26

One of the most prominent delegates, a leading intellectual, former President Rafael Palma of the
University of the Philippines, stressed as a fundamental principle in the draft of the Constitution the
limitation on the right to property. He pointed out that the then prevailing view allowed the
accumulation of wealth in one family down to the last remote descendant, resulting in a grave
disequilibrium and bringing in its wake extreme misery side by side with conspicuous luxury. He did
invite attention to the few millionaires at one extreme with the vast masses of Filipinos deprived of
the necessities of life at the other. He asked the Convention whether the Filipino people could long
remain indifferent to such a deplorable situation. For him to speak of a democracy under such
circumstances would be nothing but an illusion. He would thus emphasize the urgent need to
remedy the grave social injustice that had produced such widespread impoverishment, thus
recognizing the vital role of government in this sphere.27

Another delegate, Tomas Confesor of Iloilo, was quite emphatic in his assertion for the need of a
social justice provision which is a departure from the laissez-faire principle. Thus: "Take the case of
the tenancy system in the Philippines. You have a tenant. There are hundreds of thousands of
tenants working day in and day out, cultivating the fields of their landlords. He puts all his time, all his
energy, the labor and the assistance of his wife and children, in cultivating a piece of ground for his
landlord but when the time comes for the partition of the products of his toil what happens? If he
produces 25 cavanes of rice, he gets only perhaps five and the twenty goes to the landlord. Now can
he go to court? Has he a chance to go to court in order to secure his just share of the products of his
toil? No. Under our present regime of law, under our present regime of justice, you do not give that
to the poor tenant. Gentlemen, you go to the Cagayan Valley and see the condition under which
those poor farmers are being exploited day in and day out. Can they go to court under our present
regime of justice, of liberty, or democracy? The other day, workmen were shot by the police just
because they wanted to increase or they desired that their wages be increased from thirty centavos
a day to forty or fifty centavos. Is it necessary to spill human blood just to secure an increase of ten
centavos in the daily wages of an ordinary laborer? And yet under our present regime of social
justice, liberty and democracy, these things are happening; these things, I say, are happening. Are
those people getting any justice? No. They cannot get justice now from our courts. For this reason, I
say it is necessary that we insert 'social justice' here and that social justice must be established by
law. Proper legal provisions, proper legal facilities must be provided in order that there be a regime
not of justice alone, because we have that now and we are seeing the oppression arising from such
a regime. Consequently, we must emphasize the term 'social justice'."28

Delegate Ventenilla of Pangasinan reflected the attitude of the Convention as to why laissez-
faire was no longer acceptable. After speaking of times having changed, he proceeded: "Since then
new problems have arisen. The spiritual mission of government has descended to the level of the
material. Then its function was primarily to soothe the aching spirit. Now, it appears, it must also
appease hunger. Now that we may read history backwards, we know for instance, that the old theory
of 'laissez-faire' has degenerated into 'big business affairs' which are gradually devouring the rights
of the people — the same rights intended to be guarded and protected by the system of
constitutional guaranties. Oh, if the Fathers were now alive to see the changes that the centuries
have wrought in our life! They might contemplate the sad spectacle of organized exploitation greedily
devouring the previous rights of the individual. They might also behold the gradual disintegration of
society, the fast disappearance of the bourgeois — the middle class, the backbone of the nation —
and the consequent drifting of the classes toward the opposite extremes — the very rich and the
very poor."29

Shortly after the establishment of the Commonwealth, the then Justice Jose P. Laurel, himself one of
the foremost delegates of the Constitutional Convention, in a concurring opinion, later quoted with
approval in the leading case of Antamok Goldfields Mining Co. v. Court of Industrial
Relations,30 decided in 1940, explained clearly the need for the repudiation of the laissez-
faire doctrine. Thus: "It should be observed at the outset that our Constitution was adopted in the
midst of surging unrest and dissatisfaction resulting from economic and social distress which was
threatening the stability of governments the world over. Alive to the social and economic forces at
work, the framers of our Constitution boldly met the problems and difficulties which faced them and
endeavored to crystallize, with more or less fidelity, the political, social and economic propositions of
their age, and this they did, with the consciousness that the political and philosophical aphorism of
their generation will, in the language of a great jurist, 'be doubted by the next and perhaps entirely
discarded by the third.' . . . Embodying the spirit of the present epoch, general provisions were
inserted in the Constitution which are intended to bring about the needed social and economic
equilibrium between component elements of society through the application of what may be termed
as the justitia communis advocated by Grotius and Leibnits many years ago to be secured through
the counterbalancing of economic and social forces and opportunities which should be regulated, if
not controlled, by the State or placed, as it were, in custodia societatis. 'The promotion of social
justice to insure the well-being and economic security of all the people' was thus inserted as vital
principle in our Constitution. ... ."31 In the course of such concurring opinion and after noting the
changes that have taken place stressing that the policy of laissez-faire had indeed given way to the
assumption by the government of the right to intervene although qualified by the phrase "to some
extent", he made clear that the doctrine in People v. Pomar no longer retain, "its virtuality as a living
principle."32

3. It must be made clear that the objection to the "constituent-ministrant" classification of

governmental functions is not to its formulation as such. From the standpoint of law as logic, it is not
without merit. It has neatness and symmetry. There are hardly any loose ends. It has the virtue of
clarity. It may be said in its favor likewise that it reflects all-too-faithfully the laissez-faire notion that
government cannot extend its operation outside the maintenance of peace and order, protection
against external security, and the administration of justice, with private rights, especially so in the
case of property, being safeguarded and a hint that the general welfare is not to be entirely ignored.

It must not be lost sight of though that logic and jural symmetry while undoubtedly desirable are not
the prime consideration. This is especially so in the field of public law. What was said by Holmes,
almost nine decades ago, carry greater conviction now. "The life of the law has not been logic; it has
been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions
of public policy avowed or unconscious, even the prejudices which judges share with their fellow-
men, have had a good deal more to do than the syllogism in determining the rules by which men
should be governed."33 Then too, there was the warning of Geny cited by Cardozo that undue stress
or logic may result in confining the entire system of positive law, "within a limited number of logical
categories, predetermined in essence, immovable in basis, governed by inflexible dogmas," thus
rendering it incapable of responding to the ever varied and changing exigencies of life.34,

It is cause enough for concern if the objection to the Bacani decision were to be premised on the
score alone that perhaps there was fidelity to the requirements of logic and jural symmetry carried to
excess. What appears to me much more deplorable is that it did fail to recognize that there was a
repudiation of the laissez-faire concept in the Constitution. As was set forth in the preceding pages,
the Constitution is distinguished precisely by a contrary philosophy. The regime of liberty if provided
for, with the realization that under the then prevalent social and economic conditions, it may be
attained only through a government with its sphere of activity ranging far and wide, not excluding
matters hitherto left to the operation of free enterprise. As rightfully stressed in our decision today in
line with what was earlier expressed by Justice Laurel, the government that we have established has
as a fundamental principle the promotion of social justice.35 The same jurist gave it a comprehensive
and enduring definition as the "promotion of the welfare of all the people, the adoption by the
government of measures calculated to insure economic stability of all the component elements of
society, through the maintenance of a proper economic and social equilibrium in the interrelations of
the members of the community, constitutionally, through the adoption of measures legally justifiable,
or extra-constitutionally, through the exercise of powers underlying the existence of all governments
in the time honored principle of salus populi estsuprema lex."36

There is thus from the same distinguished pen, this time writing for the Court, a reiteration of the
view of the laissez-faire doctrine being repugnant to the fundamental law. It must be added though
that the reference to extra-constitutional measures being allowable must be understood in the sense
that there is no infringement of specific constitutional guarantees. Otherwise, the judiciary will be
hard put to sustain their validity if challenged in an appropriate legal proceeding.

The regime of liberty contemplated in the Constitution with social justice as a fundamental principle
to reinforce the pledge in the preamble of promoting the general welfare reflects traditional concepts
of a democratic policy infused with an awareness of the vital and pressing need for the government
to assume a much more active and vigorous role in the conduct of public affairs. The framers of our
fundamental law were as one in their strongly-held belief that thereby the grave and serious infirmity
then confronting our body-politic, on the whole still with us now, of great inequality of wealth and
mass poverty, with the great bulk of our people ill-clad, ill-housed, ill-fed, could be remedied. Nothing
else than communal effort, massive in extent and earnestly engaged in, would suffice.

To paraphrase Laski, with the necessary modification in line with such worthy constitutional ends, we
look upon the state as an organization to promote the happiness of individuals, its authority as a
power bound by subordination to that purpose, liberty while to be viewed negatively as absence of
restraint impressed with a positive aspect as well to assure individual self-fulfillment in the attainment
of which greater responsibility is thrust on government; and rights as boundary marks defining areas
outside its domain.37 From which it would follow as Laski so aptly stated that it is the individual's
"happiness and not its well-being [that is] the criterion by which its behavior [is] to be judged. His
interests, and not its power, set the limits to the authority it [is] entitled to exercise."38 We have under
such a test enlarged its field of competence. 4. With the decision reached by us today, the
government is freed from the compulsion exerted by the Bacani doctrine of the "constituent-
ministrant" test as a criterion for the type of activity in which it may engage. Its constricting effect is
consigned to oblivion. No doubts or misgivings need assail us that governmental efforts to promote
the public weal, whether through regulatory legislation of vast scope and amplitude or through the
undertaking of business activities, would have to face a searching and rigorous scrutiny. It is clear
that their legitimacy cannot be challenged on the ground alone of their being offensive to the
implications of the laissez-faire concept. Unless there be a repugnancy then to the limitations
expressly set forth in the Constitution to protect individual rights, the government enjoys a much
wider latitude of action as to the means it chooses to cope with grave social and economic problems
that urgently press for solution. For me, at least, that is to manifest deference to the philosophy of
our fundamental law. Hence my full concurrence, as announced at the outset.

5. The opinion of Justice Makalintal contains this footnote: "It must be stated, however, that we do
not here decide the question — not at issue in this case — of whether or not a labor organization
composed employees discharging governmental functions, which is allowed under the legal
provision just quoted, provided such organization does not impose the obligation to strike or to join in
strike, may petition for a certification election and compel the employer to bargain collectively with it
for purposes other than to secure changes or conditions in the terms and conditions of employment."

With such an affirmation as to the scope of our decision there being no holding on the vexing
question of the effects on the rights of labor in view of the conclusion reached that the function
engaged in is governmental in character, I am in full agreement. The answer to such a vital query
must await another day.

Footnotes

1Land Authority, Land Bank, Agricultural Productivity Commission; Office of the Agrarian
Counsel.

2The Land Reform Project Administration is the organization through which the field
operations of member agencies (of which the ACA is one) shall be undertaken by their
respective personnel under a unified administration. (Section 2 of Article 1, Executive Order
No. 75)

3Section 79 (D) of the Revised Administrative Code provides in part: "The Department Head,
upon the recommendation of the Chief of bureaus or office concerned, shall appoint all
subordinate officers and employees whose appointment is not expressly vested by law in the
President of the Philippines. . . . ."

4Bacani vs. National Coconut Corporation, G.R. No. L-9657, Nov. 29, 1956, 53 O.G. p.
2800.

5
Malcolm, The Government of the Philippines, pp. 19-20; Bacani vs. National Coconut
Corporation, supra.

6 It must be stated, however, that we do not here decide the question — not at issue in this
case — of whether or not a labor organization composed of employees discharging
governmental functions, which is allowed under the legal provision just quoted provided such
organization does not impose the obligation to strike or to join in strike, may petition for a
certification election and compel the employer to bargain collectively with it for purposes
other than to secure changes or modifications in the terms and conditions of their
employment. Withal, it may not be amiss to observe, albeit obiter, that the right to organize
thus allowed would be meaningless unless there is a correlative right on the part of the
 organization to be recognized as the proper representative of the employees and to bargain
in their behalf in relation to matters outside the limitations imposed by the statute, such as
those provided for in Section 28 (b) of Republic Act No. 2260, concerning complaints and
grievances of the employees.

7 Reenacted in Sec. 28 (c) of the Civil Service Act of 1959, R.A. No. 2260.

FERNANDO, J., CONCURRING:

1National Coal Co. v. Collector, 46 Phil. 583 (1924); Gov't. of P.I. v. Springer, 50 Phil. 259
(1927); Govt. of P.I. v. China Banking Corp., 54 Phil. 845 (1930); Association Cooperativa de
Credito Agricola de Miagao v. Monteclaro, 74 Phil. 281 (1943); Abad Santos v. Auditor
General, 79 Phil. 190 (1947); National Airports Corp. v. Teodoro, 91 Phil. 203 (1952); GSIS
v. Castillo, 98 Phil. 876 (1956); Price Stabilization Corp., 102 Phil. 515 (1957); Boy Scouts of
Phil. v. Araos, 102 Phil. 1080 (1958); Naric Worker's Union v. Alvendia, 107 Phil. 404 (1960);
GSIS Employees Asso. v. Alvendia, L-15614, May 30, 1960; National Dev. Co. v. Tobias, 7
SCRA 692 (1963); SSS Employees Asso. v. Soriano, 7 SCRA 1016 (1963); PAL Employees'
Asso. v. Phil. Airlines, Inc., 11 SCRA 387 (1964); Nawasa v. NWSA Consolidated Unions, 11
SCRA 766 (1964); Phil. Mfg. Co. v. Manila Port Service, 16 SCRA 95 (1966) and Phil. Postal
Savings Bank v. Court, 21 SCRA 1330 (1967).

2 100 Phil. 468 (1956).

3 Ibid., p. 472.

4 Ibid.

5 Malcolm, The Government of Philippine Islands.

6The Constitutional Position of the Property Owner in 2 Selected Essays on Constitutional

Law, p. 2 (1938).

7 Cardozo, The Nature of Judicial Process, p. 77 (1921).

8 198 US 45 (1905).

9 208 US 412.

10 243 US 426.

11 261 Us 525. Again there was a vigorous dissent from Holmes.

12 300 US 379.

13 262 US 522.

14 291 US 502.
15 Jackson, Struggle for Judicial Supremacy, p. 74, (1941).

16 284 Fed. 613 (1922).

17As was stated in the above work of Jackson: "But in just three years, beginning with the
October 1933 term, the Court refused to recognize the power of Congress in twelve cases.
Five of these twelve decisions occurred during a single year: that is, the October 1935 term;
four of the five, by a sharply divided court." Jackson, op. cit. p. 41..

18 2 Selected Essays on Constitutional Law, op, cit., p. 27.

19 319 US 624.

20
39 Phil. 660, 717-718.

21 50 Phil. 259.

22 46 Phil. 440.

23 261 US 525.

24 III Proceedings of the Philippine Constitutional Convention, Laurel ed., pp. 173-174 (1966).

25 Ibid., pp. 177-178.

26 Ibid., p. 178.

27 Cf. Ibid., pp. 227-228. To quote from Delegate Palma: "Uno de los principios
constitucionales es el referente a la limitacion de la propiedad individual. Por que se va a
limitar la adquisicion de la propiedad. Ese es otro de los prejuicios y preocupaciones que
tenemos nosotros, cuando en realidad el mundo esta sufiendo actualmente por causa de las
teorias antiguas sobre la propiedad. Ya he dicho aqui, o no se si en otra parte, que la nocion
actual sobre propiedad es la vinculacion perpetua de todos los bienes que se pueden
acumular por una familia, hasta el ultimo de sus mas remotos descendientes, ha producido
ese enorme desnivel de riqueza que se nota en todas partes del mundo, la extrema miseria
al lado del extremo lujo. Una docena de enormes millonarios, al lado de millones y millones
de seres desprovistos de lo mas elemental y rudimentario, para satisfacer las necesidades
ordinarias. Y que? Vamos a permanecer indiferentes antes que ante nuestra propia
situacion? Hablamos tanto de democracia, de prosperidad para el gran numero hacemos
algo a favor de ese gran numero que constituye la fuerza de la nacion? No vamos siquiera a
dedicar un momento de nuestra atencion a la gran injusticia social que supone el resultado
de una extrema miseria y de un lujo extremo? Fue Henry George el primero que llamo la
atencion del mundo sobre este problema. Toda la bendicion de nuestra civilizacion, las
enormes conquistas que el mundo ha realizado en el orden cientifico, han tendido solamente
a producir la felicidad de unos pocos y la miseria de las grandes muchedumbres. Creo que
este problema es digno de atencion en todas partes del mundo, y a menos que nosotros
pongamos las medidas que han de atajar los peligros de futuro, nuestra sociedad estara
siempre sujeta a las alarmas que puedan producir las muchedumbres hambrientas y
deseosas de su propio bienestar."

28 Ibid., pp. 293-294.

29 Ibid., I, Laurel ed., pp. 471-472.

30 70 Phil. 340.

31 Ibid., pp. 356-357.

32 Ibid., p. 360.

33 Holmes, The Common Law, p. 1 (1881).

34 Cardozo, op. cit., p. 47.

35 Art. II, Sec. 5, Constitution.

36 Calalang v. Williams, 70 Phil. 726, 734-735 (1940).

37 Laski, The State in Theory and Practice, p. 35 (1935).

38 Ibid., at p. 36.
G.R. No. L-5 September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner,

vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of
Manila, respondents.1

Marcelino Lontok for petitioner.

P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.

FERIA, J.:

This petition for mandamus in which petitioner prays that the respondent judge of the lower court be
ordered to continue the proceedings in civil case No. 3012 of said court, which were initiated under
the regime of the so-called Republic of the Philippines established during the Japanese military
occupation of these Islands.

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

On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next day
their Commander in Chief proclaimed "the Military Administration under law over the districts
occupied by the Army." In said proclamation, it was also provided that "so far as the Military
Administration permits, all the laws now in force in the Commonwealth, as well as executive and
judicial institutions, shall continue to be effective for the time being as in the past," and "all public
officials shall remain in their present posts and carry on faithfully their duties as before."

A civil government or central administration organization under the name of "Philippine Executive
Commission was organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief
of the Japanese Forces in the Philippines, and Jorge B. Vargas, who was appointed Chairman
thereof, was instructed to proceed to the immediate coordination of the existing central
administrative organs and judicial courts, based upon what had existed therefore, with approval of
the said Commander in Chief, who was to exercise jurisdiction over judicial courts.

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

On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial
change was effected thereby in the organization and jurisdiction of the different courts that
functioned during the Philippine Executive Commission, and in the laws they administered and
enforced.

On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur
issued a proclamation to the People of the Philippines which declared:

1. That the Government of the Commonwealth of the Philippines is, subject to the supreme
authority of the Government of the United States, the sole and only government having legal
and valid jurisdiction over the people in areas of the Philippines free of enemy occupation
and control;

2. That the laws now existing on the statute books of the Commonwealth of the Philippines
and the regulations promulgated pursuant thereto are in full force and effect and legally
binding upon the people in areas of the Philippines free of enemy occupation and control;
and

3. That all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control.

On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, General
MacArthur, on behalf of the Government of the United States, solemnly declared "the full powers and
responsibilities under the Constitution restored to the Commonwealth whose seat is here established
as provided by law."

In the light of these facts and events of contemporary history, the principal questions to be resolved
in the present case may be reduced to the following:(1) Whether the judicial acts and proceedings of
the court existing in the Philippines under the Philippine Executive Commission and the Republic of
the Philippines were good and valid and remained so even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces; (2)Whether the proclamation issued on October
23, 1944, by General Douglas MacArthur, Commander in Chief of the United States Army, in which
he declared "that all laws, regulations and processes of any of the government in the Philippines
than that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control," has invalidated all judgements and judicial acts
and proceedings of the said courts; and (3) If the said judicial acts and proceedings have not been
invalidated by said proclamation, whether the present courts of the Commonwealth, which were the
same court existing prior to, and continued during, the Japanese military occupation of the
Philippines, may continue those proceedings pending in said courts at the time the Philippines were
reoccupied and liberated by the United States and Filipino forces, and the Commonwealth of the
Philippines were reestablished in the Islands.

We shall now proceed to consider the first question, that is, whether or not under the rules of
international law the judicial acts and proceedings of the courts established in the Philippines under
the Philippine Executive Commission and the Republic of the Philippines were good and valid and
remained good and valid even after the liberation or reoccupation of the Philippines by the United
States and Filipino forces.
1. It is a legal truism in political and international law that all acts and proceedings of the legislative,
executive, and judicial departments of a de facto government are good and valid. The question to be
determined is whether or not the governments established in these Islands under the names of the
Philippine Executive Commission and Republic of the Philippines during the Japanese military
occupation or regime were de facto governments. If they were, the judicial acts and proceedings of
those governments remain good and valid even after the liberation or reoccupation of the Philippines
by the American and Filipino forces.

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

Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in
the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government,
called also by publicists a government de facto, but which might, perhaps, be more aptly
denominated a government of paramount force. Its distinguishing characteristics are (1), that its
existence is maintained by active military power with the territories, and against the rightful authority
of an established and lawful government; and (2), that while it exists it necessarily be obeyed in civil
matters by private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful
government. Actual governments of this sort are established over districts differing greatly in extent
and conditions. They are usually administered directly by military authority, but they may be
administered, also, civil authority, supported more or less directly by military force. . . . One example
of this sort of government is found in the case of Castine, in Mine, reduced to British possession in
the war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico,
occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull and regular
governments at war with the country of which the territory so possessed was part."

The powers and duties of de facto governments of this description are regulated in Section III of the
Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899
on the same subject of said Section III provides "the authority of the legislative power having actually
passed into the hands of the occupant, the latter shall take steps in his power to reestablish and
insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the
laws in force in the country."

According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is
burdened with the duty to insure public order and safety during his military occupation, he possesses
all the powers of a de factogovernment, and he can suspended the old laws and promulgate new
ones and make such changes in the old as he may see fit, but he is enjoined to respect, unless
absolutely prevented by the circumstances prevailing in the occupied territory, the municipal laws in
force in the country, that is, those laws which enforce public order and regulate social and
commercial life of the country. On the other hand, laws of a political nature or affecting political
relations, such as, among others, the right of assembly, the right to bear arms, the freedom of the
press, and the right to travel freely in the territory occupied, are considered as suspended or in
abeyance during the military occupation. Although the local and civil administration of justice is
suspended as a matter of course as soon as a country is militarily occupied, it is not usual for the
invader to take the whole administration into his own hands. In practice, the local ordinary tribunals
are authorized to continue administering justice; and judges and other judicial officers are kept in
their posts if they accept the authority of the belligerent occupant or are required to continue in their
positions under the supervision of the military or civil authorities appointed, by the Commander in
Chief of the occupant. These principles and practice have the sanction of all publicists who have
considered the subject, and have been asserted by the Supreme Court and applied by the President
of the United States.

The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol.
2, p. 444): "The right of one belligerent to occupy and govern the territory of the enemy while in its
military possession, is one of the incidents of war, and flows directly from the right to conquer. We,
therefore, do not look to the Constitution or political institutions of the conqueror, for authority to
establish a government for the territory of the enemy in his possession, during its military occupation,
nor for the rules by which the powers of such government are regulated and limited. Such authority
and such rules are derived directly from the laws war, as established by the usage of the of the
world, and confirmed by the writings of publicists and decisions of courts — in fine, from the law of
nations. . . . The municipal laws of a conquered territory, or the laws which regulate private rights,
continue in force during military occupation, excepts so far as they are suspended or changed by the
acts of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his
pleasure either change the existing laws or make new ones."

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

As to "de facto" government of the third kind, the Supreme Court of the United States, in the same
case of Thorington vs. Smith, supra, recognized the government set up by the Confederate States
as a de factogovernment. In that case, it was held that "the central government established for the
insurgent States differed from the temporary governments at Castine and Tampico in the
circumstance that its authority did no originate in lawful acts of regular war; but it was not, on the
account, less actual or less supreme. And we think that it must be classed among the governments
of which these are examples. . . .

In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States,
discussing the validity of the acts of the Confederate States, said: "The same general form of
government, the same general laws for the administration of justice and protection of private rights,
which had existed in the States prior to the rebellion, remained during its continuance and
afterwards. As far as the Acts of the States do not impair or tend to impair the supremacy of the
national authority, or the just rights of citizens under the Constitution, they are, in general, to be
treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The
existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil
government or the regular administration of the laws. Order was to be preserved, police regulations
maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates
settled, and the transfer and descent of property regulated, precisely as in the time of peace. No
one, that we are aware of, seriously questions the validity of judicial or legislative Acts in the
insurrectionary States touching these and kindered subjects, where they were not hostile in their
purpose or mode of enforcement to the authority of the National Government, and did not impair the
rights of citizens under the Constitution'. The same doctrine has been asserted in numerous other
cases."

And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured
or was done in respect of such matters under the authority of the laws of these local de
facto governments should not be disregarded or held to be invalid merely because those
governments were organized in hostility to the Union established by the national Constitution; this,
because the existence of war between the United States and the Confederate States did not relieve
those who are within the insurrectionary lines from the necessity of civil obedience, nor destroy the
bonds of society nor do away with civil government or the regular administration of the laws, and
because transactions in the ordinary course of civil society as organized within the enemy's territory
although they may have indirectly or remotely promoted the ends of the de facto or unlawful
government organized to effect a dissolution of the Union, were without blame 'except when proved
to have been entered into with actual intent to further invasion or insurrection:'" and "That judicial
and legislative acts in the respective states composing the so-called Confederate States should be
respected by the courts if they were not hostile in their purpose or mode of enforcement to the
authority of the National Government, and did not impair the rights of citizens under the
Constitution."

In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized
by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil
government established by the military forces of occupation and therefore a de facto government of
the second kind. It was not different from the government established by the British in Castine,
Maine, or by the United States in Tampico, Mexico. As Halleck says, "The government established
over an enemy's territory during the military occupation may exercise all the powers given by the
laws of war to the conqueror over the conquered, and is subject to all restrictions which that code
imposes. It is of little consequence whether such government be called a military or civil government.
Its character is the same and the source of its authority the same. In either case it is a government
imposed by the laws of war, and so far it concerns the inhabitants of such territory or the rest of the
world, those laws alone determine the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that
the Philippine Executive Commission was a civil and not a military government and was run by
Filipinos and not by Japanese nationals, is of no consequence. In 1806, when Napoleon occupied
the greater part of Prussia, he retained the existing administration under the general direction of a
french official (Langfrey History of Napoleon, 1, IV, 25); and, in the same way, the Duke of
Willington, on invading France, authorized the local authorities to continue the exercise of their
functions, apparently without appointing an English superior. (Wellington Despatches, XI, 307.). The
Germans, on the other hand, when they invaded France in 1870, appointed their own officials, at
least in Alsace and Lorraine, in every department of administration and of every rank. (Calvo, pars.
2186-93; Hall, International Law, 7th ed., p. 505, note 2.)

The so-called Republic of the Philippines, apparently established and organized as a sovereign state
independent from any other government by the Filipino people, was, in truth and reality, a
government established by the belligerent occupant or the Japanese forces of occupation. It was of
the same character as the Philippine Executive Commission, and the ultimate source of its authority
was the same — the Japanese military authority and government. As General MacArthur stated in
his proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy
duress, a so-called government styled as the 'Republic of the Philippines' was established on
October 14, 1943, based upon neither the free expression of the people's will nor the sanction of the
Government of the United States." Japan had no legal power to grant independence to the
Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty of,
the Filipino people, before its military occupation and possession of the Islands had matured into an
absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in
the law of nations. For it is a well-established doctrine in International Law, recognized in Article 45
of the Hauge Conventions of 1907 (which prohibits compulsion of the population of the occupied
territory to swear allegiance to the hostile power), the belligerent occupation, being essentially
provisional, does not serve to transfer sovereignty over the territory controlled although the de
jure government is during the period of occupancy deprived of the power to exercise its rights as
such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246;
Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the
Republic of the Philippines was a scheme contrived by Japan to delude the Filipino people into
believing in the apparent magnanimity of the Japanese gesture of transferring or turning over the
rights of government into the hands of Filipinos. It was established under the mistaken belief that by
doing so, Japan would secure the cooperation or at least the neutrality of the Filipino people in her
war against the United States and other allied nations.

Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino
who, taking advantage of the withdrawal of the American forces from the Islands, and the occupation
thereof by the Japanese forces of invasion, had organized an independent government under the
name with the support and backing of Japan, such government would have been considered as one
established by the Filipinos in insurrection or rebellion against the parent state or the Unite States.
And as such, it would have been a de facto government similar to that organized by the confederate
states during the war of secession and recognized as such by the by the Supreme Court of the
United States in numerous cases, notably those of Thorington vs. Smith, Williams vs. Bruffy, and
Badly vs. Hunter, above quoted; and similar to the short-lived government established by the Filipino
insurgents in the Island of Cebu during the Spanish-American war, recognized as a de
facto government by the Supreme Court of the United States in the case of McCleod vs. United
States (299 U. S., 416). According to the facts in the last-named case, the Spanish forces evacuated
the Island of Cebu on December 25, 1898, having first appointed a provisional government, and
shortly afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the
Islands and established a republic, governing the Islands until possession thereof was surrendered
to the United States on February 22, 1898. And the said Supreme Court held in that case that "such
government was of the class of de facto governments described in I Moore's International Law
Digest, S 20, . . . 'called also by publicists a government de facto, but which might, perhaps, be more
aptly denominated a government of paramount force . . '." That is to say, that the government of a
country in possession of belligerent forces in insurrection or rebellion against the parent state, rests
upon the same principles as that of a territory occupied by the hostile army of an enemy at regular
war with the legitimate power.

The governments by the Philippine Executive Commission and the Republic of the Philippines during
the Japanese military occupation being de facto governments, it necessarily follows that the judicial
acts and proceedings of the courts of justice of those governments, which are not of a political
complexion, were good and valid, and, by virtue of the well-known principle of postliminy
(postliminium) in international law, remained good and valid after the liberation or reoccupation of the
Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur.
According to that well-known principle in international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government of sovereignty,
"does not, except in a very few cases, wipe out the effects of acts done by an invader, which for one
reason or another it is within his competence to do. Thus judicial acts done under his control, when
they are not of a political complexion, administrative acts so done, to the extent that they take effect
during the continuance of his control, and the various acts done during the same time by private
persons under the sanction of municipal law, remain good. Were it otherwise, the whole social life of
a community would be paralyzed by an invasion; and as between the state and the individuals the
evil would be scarcely less, — it would be hard for example that payment of taxes made under
duress should be ignored, and it would be contrary to the general interest that the sentences passed
upon criminals should be annulled by the disappearance of the intrusive government ." (Hall,
International Law, 7th ed., p. 518.) And when the occupation and the abandonment have been each
an incident of the same war as in the present case, postliminy applies, even though the occupant
has acted as conqueror and for the time substituted his own sovereignty as the Japanese intended
to do apparently in granting independence to the Philippines and establishing the so-called Republic
of the Philippines. (Taylor, International Law, p. 615.)

That not only judicial but also legislative acts of de facto governments, which are not of a political
complexion, are and remain valid after reoccupation of a territory occupied by a belligerent occupant,
is confirmed by the Proclamation issued by General Douglas MacArthur on October 23, 1944, which
declares null and void all laws, regulations and processes of the governments established in the
Philippines during the Japanese occupation, for it would not have been necessary for said
proclamation to abrogate them if they were invalid ab initio.

2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the above-quoted proclamation of General Douglas MacArthur of October
23, 1944 — that is, whether it was the intention of the Commander in Chief of the American Forces
to annul and void thereby all judgments and judicial proceedings of the courts established in the
Philippines during the Japanese military occupation.

The phrase "processes of any other government" is broad and may refer not only to the judicial
processes, but also to administrative or legislative, as well as constitutional, processes of the
Republic of the Philippines or other governmental agencies established in the Islands during the
Japanese occupation. Taking into consideration the fact that, as above indicated, according to the
well-known principles of international law all judgements and judicial proceedings, which are not of a
political complexion, of the de facto governments during the Japanese military occupation were good
and valid before and remained so after the occupied territory had come again into the power of the
titular sovereign, it should be presumed that it was not, and could not have been, the intention of
General Douglas MacArthur, in using the phrase "processes of any other government" in said
proclamation, to refer to judicial processes, in violation of said principles of international law. The
only reasonable construction of the said phrase is that it refers to governmental processes other
than judicial processes of court proceedings, for according to a well-known rule of statutory
construction, set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to violate the
law of nations if any other possible construction remains."

It is true that the commanding general of a belligerent army of occupation, as an agent of his
government, may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory, if and when the exigencies of the military occupation demand such action. But even
assuming that, under the law of nations, the legislative power of a commander in chief of military
forces who liberates or reoccupies his own territory which has been occupied by an enemy, during
the military and before the restoration of the civil regime, is as broad as that of the commander in
chief of the military forces of invasion and occupation (although the exigencies of military
reoccupation are evidently less than those of occupation), it is to be presumed that General Douglas
MacArthur, who was acting as an agent or a representative of the Government and the President of
the United States, constitutional commander in chief of the United States Army, did not intend to act
against the principles of the law of nations asserted by the Supreme Court of the United States from
the early period of its existence, applied by the Presidents of the United States, and later embodied
in the Hague Conventions of 1907, as above indicated. It is not to be presumed that General
Douglas MacArthur, who enjoined in the same proclamation of October 23, 1944, "upon the loyal
citizens of the Philippines full respect and obedience to the Constitution of the Commonwealth of the
Philippines," should not only reverse the international policy and practice of his own government, but
also disregard in the same breath the provisions of section 3, Article II, of our Constitution, which
provides that "The Philippines renounces war as an instrument of national policy, and adopts the
generally accepted principles of international law as part of the law of the Nation."

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

The mere conception or thought of possibility that the titular sovereign or his representatives who
reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or
proceedings of the tribunals which the belligerent occupant had the right and duty to establish in
order to insure public order and safety during military occupation, would be sufficient to paralyze the
social life of the country or occupied territory, for it would have to be expected that litigants would not
willingly submit their litigation to courts whose judgements or decisions may afterwards be annulled,
and criminals would not be deterred from committing crimes or offenses in the expectancy that they
may escaped the penalty if judgments rendered against them may be afterwards set aside.

That the proclamation has not invalidated all the judgements and proceedings of the courts of justice
during the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force
of law, issued by the President of the Philippines on March 10, 1945, by virtue of the emergency
legislative power vested in him by the Constitution and the laws of the Commonwealth of the
Philippines. Said Executive order abolished the Court of Appeals, and provided "that all case which
have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme
Court final decision." This provision impliedly recognizes that the judgments and proceedings of the
courts during the Japanese military occupation have not been invalidated by the proclamation of
General MacArthur of October 23, because the said Order does not say or refer to cases which have
been duly appealed to said court prior to the Japanese occupation, but to cases which had therefore,
that is, up to March 10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed
that almost all, if not all, appealed cases pending in the Court of Appeals prior to the Japanese
military occupation of Manila on January 2, 1942, had been disposed of by the latter before the
restoration of the Commonwealth Government in 1945; while almost all, if not all, appealed cases
pending on March 10, 1945, in the Court of Appeals were from judgments rendered by the Court of
First Instance during the Japanese regime.

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

There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the
occupier, such as the laws, regulations and processes other than judicial of the government
established by the belligerent occupant. But in view of the fact that the proclamation uses the words
"processes of any other government" and not "judicial processes" prisely, it is not necessary to
determine whether or not General Douglas MacArthur had power to annul and set aside all
judgments and proceedings of the courts during the Japanese occupation. The question to be
determined is whether or not it was his intention, as representative of the President of the United
States, to avoid or nullify them. If the proclamation had, expressly or by necessary implication,
declared null and void the judicial processes of any other government, it would be necessary for this
court to decide in the present case whether or not General Douglas MacArthur had authority to
declare them null and void. But the proclamation did not so provide, undoubtedly because the author
thereof was fully aware of the limitations of his powers as Commander in Chief of Military Forces of
liberation or subsequent conqueror.

Not only the Hague Regulations, but also the principles of international law, as they result from the
usages established between civilized nations, the laws of humanity and the requirements of the
public of conscience, constitute or from the law of nations. (Preamble of the Hague Conventions;
Westlake, International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or
Conventions which we have already quoted in discussing the first question, imposes upon the
occupant the obligation to establish courts; and Article 23 (h), section II, of the same Conventions,
which prohibits the belligerent occupant "to declare . . . suspended . . . in a Court of Law the rights
and action of the nationals of the hostile party," forbids him to make any declaration preventing the
inhabitants from using their courts to assert or enforce their civil rights. (Decision of the Court of
Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent
occupant is required to establish courts of justice in the territory occupied, and forbidden to prevent
the nationals thereof from asserting or enforcing therein their civil rights, by necessary implication,
the military commander of the forces of liberation or the restored government is restrained from
nullifying or setting aside the judgments rendered by said courts in their litigation during the period of
occupation. Otherwise, the purpose of these precepts of the Hague Conventions would be thwarted,
for to declare them null and void would be tantamount to suspending in said courts the right and
action of the nationals of the territory during the military occupation thereof by the enemy. It goes
without saying that a law that enjoins a person to do something will not at the same time empower
another to undo the same. Although the question whether the President or commanding officer of
the United States Army has violated restraints imposed by the constitution and laws of his country is
obviously of a domestic nature, yet, in construing and applying limitations imposed on the executive
authority, the Supreme Court of the United States, in the case of Ochoa, vs. Hernandez (230 U.S.,
139), has declared that they "arise from general rules of international law and from fundamental
principles known wherever the American flag flies."

In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command
of the forces of the United States in South Carolina after the end of the Civil War, wholly annulling a
decree rendered by a court of chancery in that state in a case within its jurisdiction, was declared
void, and not warranted by the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19
of the same year (15 id., 14), which defined the powers and duties of military officers in command of
the several states then lately in rebellion. In the course of its decision the court said; "We have
looked carefully through the acts of March 2, 1867 and July 19, 1867. They give very large
governmental powers to the military commanders designated, within the States committed
respectively to their jurisdiction; but we have found nothing to warrant the order here in question. . . .
The clearest language would be necessary to satisfy us that Congress intended that the power given
by these acts should be so exercised. . . . It was an arbitrary stretch of authority, needful to no good
end that can be imagined. Whether Congress could have conferred the power to do such an act is a
question we are not called upon to consider. It is an unbending rule of law that the exercise of
military power, where the rights of the citizen are concerned, shall never be pushed beyond what the
exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67;
Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before
us from the standpoint indicated, we hold that the order was void."

It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which
declared that "all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void without legal effect in areas of the Philippines free
of enemy occupation and control," has not invalidated the judicial acts and proceedings, which are
not a political complexion, of the courts of justice in the Philippines that were continued by the
Philippine Executive Commission and the Republic of the Philippines during the Japanese military
occupation, and that said judicial acts and proceedings were good and valid before and now good
and valid after the reoccupation of liberation of the Philippines by the American and Filipino forces.

3. The third and last question is whether or not the courts of the Commonwealth, which are the same
as those existing prior to, and continued during, the Japanese military occupation by the Philippine
Executive Commission and by the so-called Republic of the Philippines, have jurisdiction to continue
now the proceedings in actions pending in said courts at the time the Philippine Islands were
reoccupied or liberated by the American and Filipino forces, and the Commonwealth Government
was restored.

Although in theory the authority the authority of the local civil and judicial administration is
suspended as a matter of course as soon as military occupation takes place, in practice the invader
does not usually take the administration of justice into his own hands, but continues the ordinary
courts or tribunals to administer the laws of the country which he is enjoined, unless absolutely
prevented, to respect. As stated in the above-quoted Executive Order of President McKinley to the
Secretary of War on May 19, 1898, "in practice, they (the municipal laws) are not usually abrogated
but are allowed to remain in force and to be administered by the ordinary tribunals substantially as
they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on
the present occasion." And Taylor in this connection says: "From a theoretical point of view it may be
said that the conqueror is armed with the right to substitute his arbitrary will for all preexisting forms
of government, legislative, executive and judicial. From the stand-point of actual practice such
arbitrary will is restrained by the provision of the law of nations which compels the conqueror to
continue local laws and institution so far as military necessity will permit." (Taylor, International
Public Law, p.596.) Undoubtedly, this practice has been adopted in order that the ordinary pursuits
and business of society may not be unnecessarily deranged, inasmuch as belligerent occupation is
essentially provisional, and the government established by the occupant of transient character.

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

If the proceedings pending in the different courts of the Islands prior to the Japanese military
occupation had been continued during the Japanese military administration, the Philippine Executive
Commission, and the so-called Republic of the Philippines, it stands to reason that the same courts,
which had become reestablished and conceived of as having in continued existence upon the
reoccupation and liberation of the Philippines by virtue of the principle of postliminy (Hall,
International Law, 7th ed., p. 516), may continue the proceedings in cases then pending in said
courts, without necessity of enacting a law conferring jurisdiction upon them to continue said
proceedings. As Taylor graphically points out in speaking of said principles "a state or other
governmental entity, upon the removal of a foreign military force, resumes its old place with its right
and duties substantially unimpaired. . . . Such political resurrection is the result of a law analogous to
that which enables elastic bodies to regain their original shape upon removal of the external force, —
and subject to the same exception in case of absolute crushing of the whole fibre and content."
(Taylor, International Public Law, p. 615.)

The argument advanced by the respondent judge in his resolution in support in his conclusion that
the Court of First Instance of Manila presided over by him "has no authority to take cognizance of,
and continue said proceedings (of this case) to final judgment until and unless the Government of
the Commonwealth of the Philippines . . . shall have provided for the transfer of the jurisdiction of the
courts of the now defunct Republic of the Philippines, and the cases commenced and the left
pending therein," is "that said courts were a government alien to the Commonwealth Government.
The laws they enforced were, true enough, laws of the Commonwealth prior to Japanese
occupation, but they had become the laws — and the courts had become the institutions — of Japan
by adoption (U.S. vs.Reiter. 27 F. Cases, No. 16146), as they became later on the laws and
institutions of the Philippine Executive Commission and the Republic of the Philippines."

The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions
of the country occupied if continued by the conqueror or occupant, become the laws and the courts,
by adoption, of the sovereign nation that is militarily occupying the territory. Because, as already
shown, belligerent or military occupation is essentially provisional and does not serve to transfer the
sovereignty over the occupied territory to the occupant. What the court said was that, if such laws
and institutions are continued in use by the occupant, they become his and derive their force from
him, in the sense that he may continue or set them aside. The laws and institution or courts so
continued remain the laws and institutions or courts of the occupied territory. The laws and the
courts of the Philippines, therefore, did not become, by being continued as required by the law of
nations, laws and courts of Japan. The provision of Article 45, section III, of the Hague Conventions
of 1907 which prohibits any compulsion of the population of occupied territory to swear allegiance to
the hostile power, "extends to prohibit everything which would assert or imply a change made by the
invader in the legitimate sovereignty. This duty is neither to innovate in the political life of the
occupied districts, nor needlessly to break the continuity of their legal life. Hence, so far as the courts
of justice are allowed to continue administering the territorial laws, they must be allowed to give their
sentences in the name of the legitimate sovereign " (Westlake, Int. Law, Part II, second ed., p. 102).
According to Wheaton, however, the victor need not allow the use of that of the legitimate
government. When in 1870, the Germans in France attempted to violate that rule by ordering, after
the fall of the Emperor Napoleon, the courts of Nancy to administer justice in the name of the "High
German Powers occupying Alsace and Lorraine," upon the ground that the exercise of their powers
in the name of French people and government was at least an implied recognition of the Republic,
the courts refused to obey and suspended their sitting. Germany originally ordered the use of the
name of "High German Powers occupying Alsace and Lorraine," but later offered to allow use of the
name of the Emperor or a compromise. (Wheaton, International Law, War, 7th English ed. 1944, p.
244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established
continues until changed by the some competent legislative power. It is not change merely by change
of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9, citing
Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on the Conflict
on Laws (Cambridge, 1916, Section 131): "There can no break or interregnum in law. From the time
the law comes into existence with the first-felt corporateness of a primitive people it must last until
the final disappearance of human society. Once created, it persists until a change take place, and
when changed it continues in such changed condition until the next change, and so forever.
Conquest or colonization is impotent to bring law to an end; in spite of change of constitution, the law
continues unchanged until the new sovereign by legislative acts creates a change."

As courts are creatures of statutes and their existence defends upon that of the laws which create
and confer upon them their jurisdiction, it is evident that such laws, not being a political nature, are
not abrogated by a change of sovereignty, and continue in force "ex proprio vigore" unless and until
repealed by legislative acts. A proclamation that said laws and courts are expressly continued is not
necessary in order that they may continue in force. Such proclamation, if made, is but a declaration
of the intention of respecting and not repealing those laws. Therefore, even assuming that Japan
had legally acquired sovereignty over these Islands, which she had afterwards transferred to the so-
called Republic of the Philippines, and that the laws and the courts of these Islands had become the
courts of Japan, as the said courts of the laws creating and conferring jurisdiction upon them have
continued in force until now, it necessarily follows that the same courts may continue exercising the
same jurisdiction over cases pending therein before the restoration of the Commonwealth
Government, unless and until they are abolished or the laws creating and conferring jurisdiction
upon them are repealed by the said government. As a consequence, enabling laws or acts providing
that proceedings pending in one court be continued by or transferred to another court, are not
required by the mere change of government or sovereignty. They are necessary only in case the
former courts are abolished or their jurisdiction so change that they can no longer continue taking
cognizance of the cases and proceedings commenced therein, in order that the new courts or the
courts having jurisdiction over said cases may continue the proceedings. When the Spanish
sovereignty in the Philippine Islands ceased and the Islands came into the possession of the United
States, the "Audiencia" or Supreme Court was continued and did not cease to exist, and proceeded
to take cognizance of the actions pending therein upon the cessation of the Spanish sovereignty
until the said "Audiencia" or Supreme Court was abolished, and the Supreme Court created in
Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First Instance of the
Islands during the Spanish regime continued taking cognizance of cases pending therein upon the
change of sovereignty, until section 65 of the same Act No. 136 abolished them and created in its
Chapter IV the present Courts of First Instance in substitution of the former. Similarly, no enabling
acts were enacted during the Japanese occupation, but a mere proclamation or order that the courts
in the Island were continued.

On the other hand, during the American regime, when section 78 of Act No. 136 was enacted
abolishing the civil jurisdiction of the provost courts created by the military government of occupation
in the Philippines during the Spanish-American War of 1898, the same section 78 provided for the
transfer of all civil actions then pending in the provost courts to the proper tribunals, that is, to the
justices of the peace courts, Court of First Instance, or Supreme Court having jurisdiction over them
according to law. And later on, when the criminal jurisdiction of provost courts in the City of Manila
was abolished by section 3 of Act No. 186, the same section provided that criminal cases pending
therein within the jurisdiction of the municipal court created by Act No. 183 were transferred to the
latter.

That the present courts as the same courts which had been functioning during the Japanese regime
and, therefore, can continue the proceedings in cases pending therein prior to the restoration of the
Commonwealth of the Philippines, is confirmed by Executive Order No. 37 which we have already
quoted in support of our conclusion in connection with the second question. Said Executive Order
provides"(1) that the Court of Appeals created and established under Commonwealth Act No. 3 as
amended, be abolished, as it is hereby abolished," and "(2) that all cases which have heretofore
been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final
decision. . . ." In so providing, the said Order considers that the Court of Appeals abolished was the
same that existed prior to, and continued after, the restoration of the Commonwealth Government;
for, as we have stated in discussing the previous question, almost all, if not all, of the cases pending
therein, or which had theretofore (that is, up to March 10, 1945) been duly appealed to said court,
must have been cases coming from the Courts of First Instance during the so-called Republic of the
Philippines. If the Court of Appeals abolished by the said Executive Order was not the same one
which had been functioning during the Republic, but that which had existed up to the time of the
Japanese occupation, it would have provided that all the cases which had, prior to and up to that
occupation on January 2, 1942, been dully appealed to the said Court of Appeals shall be
transmitted to the Supreme Court for final decision.

It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the
proceedings in cases, not of political complexion, pending therein at the time of the restoration of the
Commonwealth Government.

Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has
jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which involves civil
rights of the parties under the laws of the Commonwealth Government, pending in said court at the
time of the restoration of the said Government; and that the respondent judge of the court, having
refused to act and continue him does a duty resulting from his office as presiding judge of that
court, mandamus is the speedy and adequate remedy in the ordinary course of law, especially
taking into consideration the fact that the question of jurisdiction herein involved does affect not only
this particular case, but many other cases now pending in all the courts of these Islands.

In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the
respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of and
continue to final judgment the proceedings in civil case No. 3012 of said court. No pronouncement
as to costs. So ordered.

Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.

Separate Opinions

DE JOYA, J., concurring:

The principal question involved in this case is the validity of the proceedings held in civil case No.
3012, in the Court of First Instance of the City of Manila, under the now defunct Philippine Republic,
during Japanese occupation; and the effect on said proceedings of the proclamation of General
Douglas MacArthur, dated October 23, 1944. The decision of this question requires the application
of principles of International Law, in connection with the municipal law in force in this country, before
and during Japanese occupation.

Questions of International Law must be decided as matters of general law (Juntington vs. Attril, 146
U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and International Law is no alien in this Tribunal, as,
under the Constitution of the Commonwealth of the Philippines, it is a part of the fundamental law of
the land (Article II, section 3).

As International Law is an integral part of our laws, it must be ascertained and administered by this
Court, whenever questions of right depending upon it are presented for our determination, sitting as
an international as well as a domestic Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct.
552; 46 Law. Ed., 838).

Since International Law is a body of rules actually accepted by nations as regulating their mutual
relations, the proof of the existence of a given rule is to be found in the consent of nations to abide
by that rule; and this consent is evidenced chiefly by the usages and customs of nations, and to
ascertain what these usages and customs are, the universal practice is to turn to the writings of
publicists and to the decisions of the highest courts of the different countries of the world (The
Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44 Law. ed., 320).

But while usage is the older and original source of International Law, great international treaties are
a later source of increasing importance, such as The Hague Conventions of 1899 and 1907.

The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declares
that:

ARTICLE XLII. Territory is considered occupied when it is actually placed under the authority
of the hostile army.

The occupation applies only to be territory where such authority is established, and in a
position to assert itself.

ARTICLE XLIII. The authority of the legitimate power having actually passed into the hands
of the occupant, the later shall take all steps in his power to reestablish and insure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country. (32 Stat. II, 1821.)

The above provisions of the Hague Convention have been adopted by the nations giving adherence
to them, among which is United States of America (32 Stat. II, 1821).

The commander in chief of the invading forces or military occupant may exercise governmental
authority, but only when in actual possession of the enemy's territory, and this authority will be
exercised upon principles of international Law (New Orleans vs. Steamship Co, [1874], 20 Wall.,
387; Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57
Law Ed., 1260; II Oppenheim of International Law, section 167).

There can be no question that the Philippines was under Japanese military occupation, from
January, 1942, up to the time of the reconquest by the armed forces of the United States of the
Island of Luzon, in February, 1945.

It will thus be readily seen that the civil laws of the invaded State continue in force, in so far as they
do not affect the hostile occupant unfavorably. The regular judicial Tribunals of the occupied territory
continue usual for the invader to take the whole administration into his own hands, partly because it
is easier to preserve order through the agency of the native officials, and partly because it is easier
to preserve order through the agency of the native officials, and partly because the latter are more
competent to administer the laws in force within the territory and the military occupant generally
keeps in their posts such of the judicial and administrative officers as are willing to serve under him,
subjecting them only to supervision by the military authorities, or by superior civil authorities
appointed by him.(Young vs. U.S., 39; 24 Law, ed., 992; Coleman vs. Tennessee, 97 U.S., 509; 24
Law ed., 1118; MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on
International Law, sections 576. 578; Wilson on International Law; pp. 331-37; Hall on International
Law, 6th Edition [1909], pp. 464, 465, 475, 476; Lawrence on International Law, 7th ed., pp. 412,
413; Davis, Elements of International Law, 3rd ed., pp. 330-332 335; Holland on International Law
pp. 356, 357, 359; Westlake on International Law, 2d ed., pp. 121-23.)

It is, therefore, evident that the establishment of the government under the so-called Philippine
Republic, during Japanese occupation, respecting the laws in force in the country, and permitting the
local courts to function and administer such laws, as proclaimed in the City of Manila, by the
Commander in Chief of the Japanese Imperial Forces, on January 3, 1942, was in accordance with
the rules and principles of International Law.

If the military occupant is thus in duly bound to establish in the territory under military occupation
governmental agencies for the preservation of peace and order and for the proper administration of
justice, in accordance with the laws in force within territory it must necessarily follow that the judicial
proceedings conducted before the courts established by the military occupant must be considered
legal and valid, even after said government establish by the military occupant has been displaced by
the legitimate government of the territory.

Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely
settling the rights of private parties actually within their jurisdiction, not tending to defeat the legal
rights of citizens of the United States, nor in furtherance of laws passed in aid of the rebellion had
been declared valid and binding (Cock vs. Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164;
Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118; Williams vs. Bruffy, 96 U. S., 176;
Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700;
Ketchum vs. Buckley [1878], 99 U.S., 188); and the judgment of a court of Georgia rendered in
November, 1861, for the purchase money of slaves was held valid judgment when entered, and
enforceable in 1871(French vs. Tumlin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104).

Said judgments rendered by the courts of the states constituting the Confederate States of America
were considered legal and valid and enforceable, even after the termination of the American Civil
War, because they had been rendered by the courts of a de facto government. The Confederate
States were a de facto government in the sense that its citizens were bound to render the
government obedience in civil matters, and did not become responsible, as wrong-doers, for such
acts of obedience (Thorington vs. Smith, 8 Wall. [U.S.], 9; 19 Law. ed., 361).

In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held — "It is now settled law in
this court that during the late civil war the same general form of government, the same general law
for the administration of justice and the protection of private rights, which had existed in the States
prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the
States did not impair or tend to impair the supremacy of the national authority, or the just and legal
rights of the citizens, under the Constitution, they are in general to be treated as valid and binding."
(William vs. Bruffy, 96 U.S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id.,
459; Texas vs. White, 7 id., 700.)

The government established in the Philippines, during Japanese occupation, would seem to fall
under the following definition of de facto government given by the Supreme Court of the United
States:
 But there is another description of government, called also by publicists, a government de
facto, but which might, perhaps, be more aptly denominateda government of paramount
force. Its distinguishing characteristics are (1) that its existence is maintained by active
military power within the territories, and against the rightful authority of an established and
lawful government; and (2) that while it exists it must necessarily be obeyed in civil matters
by private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, as wrong doers, for those acts, though not warranted by the laws of the
rightful government. Actual government of this sort are established over districts differing
greatly in extent and conditions. They are usually administered directly by military authority,
but they may be administered, also, by civil authority, supported more or less directly by
military force. (Macleod vs. United States [1913] 229 U.S., 416.)

The government established in the Philippines, under the so-called Philippine Republic, during
Japanese occupation, was and should be considered as a de facto government; and that the judicial
proceedings conducted before the courts which had been established in this country, during said
Japanese occupation, are to be considered legal and valid and enforceable, even after the liberation
of this country by the American forces, as long as the said judicial proceedings had been conducted,
under the laws of the Commonwealth of the Philippines.

The judicial proceedings involved in the case under consideration merely refer to the settlement of
property rights, under the provisions of the Civil Code, in force in this country under the
Commonwealth government, before and during Japanese occupation.

Now, petitioner contends that the judicial proceedings in question are null and void, under the
provisions of the proclamation issued by General Douglas MacArthur, dated October 23, 1944; as
said proclamation "nullifies all the laws, regulations and processes of any other government of the
Philippines than that of the Commonwealth of the Philippines."

In other words, petitioner demands a literal interpretation of said proclamation issued by General
Douglas MacArthur, a contention which, in our opinion, is untenable, as it would inevitably produce
judicial chaos and uncertainties.

When an act is susceptible of two or more constructions, one of which will maintain and the others
destroy it, the courts will always adopt the former (U. S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed.,
1004; Board of Supervisors of Granada County vs. Brown [1884], 112 U.S., 261; 28 Law. ed., 704; 5
Sup. Ct. Rep., 125; In re Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46
Phil., 385). The judiciary, always alive to the dictates of national welfare, can properly incline the
scales of its decisions in favor of that solution which will most effectively promote the public policy
(Smith, Bell & Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible
construction. General terms should be so limited in their application as not lead to injustice,
oppression or an absurd consequence. It will always, therefore, be presumed that the legislature
intended exceptions to its language, which would avoid results of this character. The reason of the
law in such cases should prevail over its letter (U. S. vs.Kirby, 7 Wall. [U.S.], 482; 19 Law. ed., 278;
Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct., 511; 36 Law. ed., 226;
Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765;
In re Allen, 2 Phil., 630). The duty of the court in construing a statute, which is reasonably
susceptible of two constructions to adopt that which saves is constitutionality, includes the duty of
avoiding a construction which raises grave and doubtful constitutional questions, if it can be avoided
(U. S. vs. Delaware & Hudson Co., U.S., 366; 29 Sup. Ct., 527; 53 Law. ed., 836).

According to the rules and principles of International Law, and the legal doctrines cited above, the
judicial proceedings conducted before the courts of justice, established here during Japanese
military occupation, merely applying the municipal law of the territory, such as the provisions of our
Civil Code, which have no political or military significance, should be considered legal, valid and
binding.

It is to be presumed that General Douglas MacArthur is familiar with said rules and principles, as
International Law is an integral part of the fundamental law of the land, in accordance with the
provisions of the Constitution of the United States. And it is also to be presumed that General
MacArthur his acted, in accordance with said rules and principles of International Law, which have
been sanctioned by the Supreme Court of the United States, as the nullification of all judicial
proceedings conducted before our courts, during Japanese occupation would lead to injustice and
absurd results, and would be highly detrimental to the public interests.

For the foregoing reasons, I concur in the majority opinion.

PERFECTO, J., dissenting:

Law must be obeyed. To keep the bonds of society, it must not be evaded. On its supremacy
depends the stability of states and nations. No government can prevail without it. The preservation of
the human race itself hinges in law.

Since time immemorial, man has relied on law as an essential means of attaining his purposes, his
objectives, his mission in life. More than twenty-two centuries before the Christian Era, on orders of
the Assyrian King Hammurabi, the first code was engrave in black diorite with cunie form characters.
Nine centuries later Emperor Hung Wu, in the cradle of the most ancient civilization, compiled the
Code of the Great Ming. The laws of Manu were written in the verdic India. Moses received at Sinai
the ten commandments. Draco, Lycurgus, Solon made laws in Greece. Even ruthless Genghis Khan
used laws to keep discipline among the nomad hordes with which he conquered the greater part of
the European and Asiastic continents.

Animal and plants species must follow the mendelian heredity rules and other biological laws to
survive. Thanks to them, the chalk cliffs of the infusoria show the marvel of an animal so tiny as to
be imperceptible to the naked eye creating a whole mountain. Even the inorganic world has to
conform the law. Planets and stars follow the laws discovered by Kepler, known as the law-maker of
heavens. If, endowed with rebellious spirit, they should happen to challenge the law of universal
gravity, the immediate result would be cosmic chaos. The tiny and twinkling points of light set above
us on the velvet darkness of the night will cease to inspire us with dreams of more beautiful and
happier worlds.

Again we are called upon to do our duty. Here is a law that we must apply. Shall we shrink? Shall we
circumvent it ? Can we ignore it?

The laws enacted by the legislators shall be useless if courts are not ready to apply them. It is actual
application to real issues which gives laws the breath of life.

In the varied and confused market of human endeavor there are so many things that might induce us
to forget the elementals. There are so many events, so many problem, so many preoccupations that
are pushing among themselves to attract our attention, and we might miss the nearest and most
familiar things, like the man who went around his house to look for a pencil perched on one of his
ears.

THE OCTOBER PROCLAMATION

In October, 1944, the American Armed Forces of Liberation landed successfully in Leyte.

When victory in islands was accomplished, after the most amazing and spectacular war operations,
General of the Army Douglas MacArthur as a commander in Chief of the American Army, decided to
reestablish, in behalf of the United States, the Commonwealth Government.

Then he was confronted with the question as to what policy to adopt in regards to the official acts of
the governments established in the Philippines by the Japanese regime. He might have thought of
recognizing the validity of some of said acts, but, certainly, there were acts which he should declare
null and void, whether against the policies of the American Government, whether inconsistent with
military strategy and operations, whether detrimental to the interests of the American or Filipino
peoples, whether for any other strong or valid reasons.

But, which to recognize, and which not? He was not in a position to gather enough information for a
safe basis to distinguished and classify which acts must be nullified, and which must validated. At
the same time he had to take immediate action. More pressing military matters were requiring his
immediate attention. He followed the safe course: to nullify all the legislative, executive, and judicial
acts and processes under the Japanese regime. After all, when the Commonwealth Government is
already functioning, with proper information, he will be in a position to declare by law, through its
Congress, which acts and processes must be revived and validated in the public interest.

So on October 23, 1944, the Commander in Chief issued the following proclamation:

GENERAL HEADQUARTERS

SOUTHWEST PACIFIC AREA

OFFICE OF THE COMMANDER IN CHIEF

PROCLAMATION

To the People of the Philippines:

WHEREAS, the military forces under my command have landed in the Philippines soil as a
prelude to the liberation of the entire territory of the Philippines; and

WHEREAS, the seat of the Government of the Commonwealth of the Philippines has been
re-established in the Philippines under President Sergio Osmeña and the members of his
cabinet; and

WHEREAS, under enemy duress, a so-called government styled as the "Republic of the
Philippines" was established on October 14, 1943, based upon neither the free expression of
the people's will nor the sanction of the Government of the United States, and is purporting
to exercise Executive, Judicial and Legislative powers of government over the people;
 Now, therefore, I, Douglas MacArthur, General, United States Army, as Commander in Chief
of the military forces committed to the liberation of the Philippines, do hereby proclaim and
declare:

1. That the Government of the Commonwealth of the Philippines is, subject to the
supreme authority of the Government of the United States, the sole and the only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;

2. The laws now existing on the statute books of the Commonwealth of the
Philippines and the regulation promulgated pursuant thereto are in full force and
effect and legally binding upon the people in areas of the Philippines free of enemy
occupation and control; and

3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free enemy occupation and control; and

I do hereby announce my purpose progressively to restore and extend to the people of the
Philippines the sacred right of government by constitutional process under the regularly
constituted Commonwealth Government as rapidly as the several occupied areas are
liberated to the military situation will otherwise permit;

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts
of their duly constituted government whose seat is now firmly re-established on Philippine
soil.

October 23, 1944.

DOUGLAS MACARTHUR
General U. S. Army
Commander in Chief

IS THE OCTOBER PROCLAMATION LAW?

In times of war the Commander in Chief of an army is vested with extraordinary inherent powers, as
a natural result of the nature of the military operations aimed to achieve the purposes of his country
in the war, victory being paramount among them.

Said Commander in Chief may establish in the occupied or reoccupied territory, under his control, a
complete system of government; he may appoint officers and employees to manage the affairs of
said government; he may issue proclamations, instructions, orders, all with the full force of laws
enacted by a duly constituted legislature; he may set policies that should be followed by the public
administration organized by him; he may abolish the said agencies. In fact, he is the supreme ruler
and law-maker of the territory under his control, with powers limited only by the receipts of the
fundamental laws of his country.

California, or the port of San Francisco, had been conquered by the arms of the United
States as early as 1846. Shortly afterward the United States had military possession of all
upper California. Early in 1847 the President, as constitutional commander in chief of the
army and navy, authorized the military and naval commander of our forces in California to
exercise the belligerent rights of a conqueror, and form a civil government for the conquered
country, and to impose duties on imports and tonnage as military contributions for the
support of the government, and of the army which has the conquest in possession. . . Cross
of Harrison, 16 Howard, 164, 189.)

In May, 1862, after the capture of New Orleans by the United States Army, General Butler,
then in command of the army at that place, issued a general order appointing Major J. M.
Bell, volunteer aide-de-camp, of the division staff, provost judge of the city, and directed that
he should be obeyed and respected accordingly. The same order appointed Capt. J. H.
French provost marshal of the city, the Capt. Stafford deputy provost marshal. A few days
after this order the Union Bank lent to the plaintiffs the sum of $130,000, and subsequently,
the loan not having been repaid, brought suit before the provost judge to recover the debt.
The defense was taken that the judge had no jurisdiction over the civil cases, but judgement
was given against the borrowers, and they paid the money under protest. To recover it back
is the object of the present suit, and the contention of the plaintiffs is that the judgement was
illegal and void, because the Provost Court had no jurisdiction of the case. The judgement of
the District Court was against the plaintiffs, and this judgement was affirmed by the Supreme
Court of the State. To this affirmance error is now assigned.

The argument of the plaintiffs in error is that the establishment of the Provost Court, the
appointment of the judge, and his action as such in the case brought by the Union Bank
against them were invalid, because in violation of the Constitution of the United States, which
vests the judicial power of the General government in one Supreme Court and in such
inferior courts as Congress may from time to time ordain and establish, and under this
constitutional provision they were entitled to immunity from liability imposed by the judgment
of the Provost Court. Thus, it is claimed, a Federal question is presented, and the highest
court of the State having decided against the immunity claimed, our jurisdiction is invoked.

Assuming that the case is thus brought within our right to review it, the controlling question is
whether the commanding general of the army which captured New Orleans and held it in
May 1862, had authority after the capture of the city to establish a court and appoint a judge
with power to try and adjudicate civil causes. Did the Constitution of the United States
prevent the creation of the civil courts in captured districts during the war of the rebellion, and
their creation by military authority?

This cannot be said to be an open question. The subject came under the consideration by
this court in The Grapeshot, where it was decided that when, during the late civil war,
portions of the insurgent territory were occupied by the National forces, it was within the
constitutional authority of the President, as commander in chief, to establish therein
provisional courts for the hearing and determination of all causes arising under the laws of
the States or of the United States, and it was ruled that a court instituted by President Lincoln
for the State of Louisiana, with authority to hear, try, and determine civil causes, was lawfully
authorized to exercise such jurisdiction. Its establishment by the military authority was held to
be no violation of the constitutional provision that "the judicial power of the United States
shall be vested in one Supreme Court and in such inferior courts as the Congress may form
time to time ordain and establish." That clause of the Constitution has no application to the
abnormal condition of conquered territory in the occupancy of the conquering, army. It refers
only to courts of United States, which military courts are not. As was said in the opinion of
the court, delivered by Chief Justice Chase, in The Grapeshot, "It became the duty of the
National government, wherever the insurgent power was overthrown, and the territory which
had been dominated by it was occupied by the National forces, to provide, as far as possible,
so long as the war continued, for the security of the persons and property and for the
 administration of justice. The duty of the National government in this respect was no other
than that which devolves upon a regular belligerent, occupying during war the territory of
another belligerent. It was a military duty, to be performed by the President, as Commander
in Chief, and instructed as such with the direction of the military force by which the
occupation was held."

Thus it has been determined that the power to establish by military authority courts for the
administration of civil as well as criminal justice in portions of the insurgent States occupied
by the National forces, is precisely the same as that which exists when foreign territory has
been conquered and is occupied by the conquerors. What that power is has several times
been considered. In Leitensdorfer & Houghton vs. Webb, may be found a notable illustration.
Upon the conquest of New Mexico, in 1846, the commanding officer of the conquering army,
in virtue of the power of conquest and occupancy, and with the sanction and authority of the
President, ordained a provisional government for the country. The ordinance created courts,
with both civil and criminal jurisdiction. It did not undertake to change the municipal laws of
the territory, but it established a judicial system with a superior or appellate court, and with
circuit courts, the jurisdiction of which declared to embrace, first, all criminal causes that
should not otherwise provided for by law; and secondly, original and exclusive cognizance of
all civil cases not cognizable before the prefects and alcades. But though these courts and
this judicial system were established by the military authority of the United States, without
any legislation of Congress, this court ruled that they were lawfully established. And there
was no express order for their establishment emanating from the President or the
Commander in Chief. The ordinance was the act of the General Kearney the commanding
officer of the army occupying the conquered territory.

In view of these decisions it is not to be questioned that the Constitution did not prohibit the
creation by the military authority of court for the trial of civil causes during the civil war in
conquered portions of the insurgent States. The establishment of such courts is but the
exercise of the ordinary rights of conquest. The plaintiffs in error, therefore, had no
constitutional immunity against subjection to the judgements of such courts. They argue,
however, that if this be conceded, still General Butler had no authority to establish such a
court; that the President alone, as a Commander in Chief, had such authority. We do not
concur in this view. General Butler was in command of the conquering and the occupying
army. He was commissioned to carry on the war in Louisina. He was, therefore, invested
with all the powers of making war, so far as they were denied to him by the Commander in
Chief, and among these powers, as we have seen, was of establishing courts in conquered
territory. It must be presumed that he acted under the orders of his superior officer, the
President, and that his acts, in the prosecution of the war, were the acts of his commander in
chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.)

There is no question, therefore, that when General of the Army Douglas MacArthur issued on
October Proclamation, he did it in the legitimate exercise of his powers. He did it as the official
representative of the supreme authority of the United States of America. Consequently, said
proclamation is legal, valid, and binding.

Said proclamation has the full force of a law. In fact, of a paramount law. Having been issued in the
exercise of the American sovereignty, in case of conflict, it can even supersede, not only the
ordinary laws of the Commonwealth of the Philippines, but also our Constitution itself while we
remain under the American flag.

"PROCESS" IN THE OCTOBER PROCLAMATION

In the third section of the dispositive part of the October Proclamation, it is declared that all laws,
regulations and processes of any other government in the Philippines than that of the
Commonwealth, are null and void.

Does the word "processes" used in the proclamation include judicial processes?

In its broadest sense, process is synonymous with proceedings or procedures and embraces all the
steps and proceedings in a judicial cause from it commencement to its conclusion.

PROCESS. In Practice. — The means of compelling a defendant to appear in court after

suing out the original writ, in civil, and after indictment, in criminal cases.

The method taken by law to compel a compliance with the original writ or command as of the
court.

A writ, warrant, subpoena, or other formal writing issued by authority law; also the means of
accomplishing an end, including judicial proceedings; Gollobitch vs. Rainbow, 84 la., 567; 51
N. W., 48; the means or method pointed out by a statute, or used to acquire jurisdiction of
the defendants, whether by writ or notice. Wilson vs.R. Co. (108 Mo., 588; 18 S. W., 286; 32
Am. St. Rep., 624). (3 Bouvier's Law Dictionary, p. 2731.)

A. Process generally. 1. Definition. — As a legal term process is a generic word of every

comprehensive signification and many meanings. It is broadest sense it is equivalent to, or
synonymous with, "proceedings" or "procedure," and embraces all the steps and
proceedings in a cause from its commencement to its conclusion. Sometimes the term is
also broadly defined as the means whereby a court compels a compliance with it demands.
"Process" and "writ" or "writs" are synonymous in the sense that every writ is a process, and
in a narrow sense of the term "process" is limited to judicial writs in an action, or at least to
writs or writings issued from or out of court, under the seal thereof, and returnable thereto;
but it is not always necessary to construe the term so strictly as to limit it to a writ issued by a
court in the exercise of its ordinary jurisdiction; the term is sometimes defined as a writ or
other formal writing issued by authority of law or by some court, body, or official having
authority to issue it; and it is frequently used to designate a means, by writ or otherwise , of
acquiring jurisdiction of defendant or his property, or of bringing defendant into, or compelling
him to appear in, court to answer.

As employed in the statutes the legal meaning of the word "process" varies according to the
context, subject matter, and spirit of the statute in which it occurs. In some jurisdictions
codes or statutes variously define "process" as signifying or including: A writ or summons
issued in the course of judicial proceedings; all writs, warrants, summonses, and orders of
courts of justice or judicial officers; or any writ, declaration, summons, order, or subpoena
whereby any action, suit or proceeding shall be commenced, or which shall be issued in or
upon any action, suit or proceeding. (50 C. J., PP. 441, 442.)

The definition of "process" given by Lord Coke comprehends any lawful warrant, authority, or
proceeding by which a man may be arrested. He says: "Process of law is two fold, namely,
by the King's writ, or by proceeding and warrant, either in deed or in law, without writ."
(People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50 A., 869; 73 Vt., 149.)

Baron Comyn says that process, in a large acceptance, comprehends the whole proceedings
after the original and before judgement; but generally it imports the writs which issue out of
any court to bring the party to answer, or for doing execution, and all process out of the
King's court ought to be in the name of the King. It is called "process" because it proceeds or
goes upon former matter, either original or judicial. Gilmer, vs.Bird 15 Fla., 410, 421. (34
Words and Phrases, permanent edition, 1940 edition, p. 147.)

In a broad sense the word "process" includes the means whereby a court compels the
appearance of the defendant before it, or a compliance with it demands, and any every writ,
rule order, notice, or decree, including any process of execution that may issue in or upon
any action, suit, or legal proceedings, and it is not restricted to mesne process. In a narrow
or restricted sense it is means those mandates of the court intending to bring parties into
court or to require them to answer proceedings there pending. (Colquitt Nat.
Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329. (34 Words and Phrases, permanent
edition, 1940 edition, p. 148.)

A "process" is an instrument in an epistolary from running in the name of the sovereign of a

state and issued out of a court of justice, or by a judge thereof, at the commencement of an
action or at any time during its progress or incident thereto, usually under seal of the court,
duly attested and directed to some municipal officer or to the party to be bound by it,
commanding the commission of some act at or within a specified time, or prohibiting the
doing of some act. The cardinal requisites are that the instrument issue from a court of
justice, or a judge thereof; that it run in the name of the sovereign of the state; that it be duly
attested, but not necessarily by the judge, though usually, but not always, under seal; and
that it be directed to some one commanding or prohibiting the commission of an act.
Watson vs. Keystone Ironworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and Phrases,
permanent edition, 1940 edition, p. 148.)

Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is largely taken
for all proceedings in any action or prosecution, real or personal, civil or criminal, from the
beginning to the end; secondly, that is termed the "process" by which a man is called into
any temporal court, because the beginning or principal part thereof, by which the rest is
directed or taken. Strictly, it is a proceeding after the original, before the judgement. A policy
of fire insurance contained the condition that if the property shall be sold or transferred, or
any change takes place in title or possession, whether by legal process or judicial decree or
voluntary transfer or convenience, then and in every such case the policy shall be void. The
term "legal process," as used in the policy, means what is known as a writ; and, as
attachment or execution on the writs are usually employed to effect a change of title to
property, they are or are amongst the processes contemplated by the policy. The words
"legal process" mean all the proceedings in an action or proceeding. They would necessarily
embrace the decree, which ordinarily includes the proceedings. Perry vs. Lorillard Fire Ins.
Co., N. Y., 6 Lans., 201, 204. See, also, Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words
and Phrases, permanent edition, 1940 edition, p. 148.)

"Process" in a large acceptation, is nearly synonymous with "proceedings," and means the
entire proceedings in an action, from the beginning to the end. In a stricter sense, it is
applied to the several judicial writs issued in an action. Hanna vs. Russell, 12 Minn., 80, 86
(Gil., 43, 45). (34 Words and Phrases, permanent edition, 1940, edition 149.)

The term "process" as commonly applied, intends that proceeding by which a party is called
into court, but it has more enlarged signification, and covers all the proceedings in a court,
from the beginning to the end of the suit; and, in this view, all proceedings which may be had
to bring testimony into court, whether viva voceor in writing, may be considered the process
of the court. Rich vs. Trimple, Vt., 2 Tyler, 349, 350. Id.
 "Process" in its broadest sense comprehends all proceedings to the accomplishment of an
end, including judicial proceedings. Frequently its signification is limited to the means of
bringing a party in court. In the Constitution process which at the common law would have
run in the name of the king is intended. In the Code process issued from a court is meant.
McKenna vs. Cooper, 101 P., 662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12 Minn.,
80. (Gil., 43 ); Black Com. 279; Bou vs. Law. Dict. (34 Words and Phrases, permanent
edition 1940 edition, p. 149.)

"Judicial process" includes the mandate of a court to its officers, and a means whereby
courts compel the appearance of parties, or compliance with its commands, and includes a
summons. Ex parte Hill, 51 So., 786, 787; 165 Ala., 365.

"Judicial process" comprehends all the acts of then court from the beginning of the
proceeding to its end, and in a narrower sense is the means of compelling a defendant to
appear in court after suing out the original writ in civil case and after the indictment in
criminal cases, and in every sense is the act of the court and includes any means of
acquiring jurisdiction and includes attachment, garnishment, or execution, and also a writ.
Blair vs. Maxbass Security Bank of Maxbass, 176 N. W., 98, 199; 44 N. D. 12 (23 Words and
Phrases, permanent edition 1940 edition, p. 328.)

There is no question that the word process, as used in the October Proclamation, includes all judicial
processes or proceedings.

The intention of the author of the proclamation of including judicial processes appears clearly in the
preamble of the document.

The second "Whereas," states that so-called government styled as the "Republic of the Philippines,"
based upon neither the free expression of the people's will nor the sanction of the Government of the
United States, and is purporting to the exercise Executive, Judicial, and Legislative powers of
government over the people."

It is evident from the above-mentioned words that it was the purpose of General MacArthur to
declare null and void all acts of government under the Japanese regime, and he used, in section 3 of
he dispositive part, the word laws, as pertaining to the legislative branch, the word regulations, as
pertaining to the executive branch, and lastly, the word processes, as pertaining to the judicial
branch of the government which functioned under the Japanese regime.

It is reasonable to assume that he might include in the word "process." besides those judicial
character, those of executive or administrative character. At any rate, judicial processes cannot be
excluded.

THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY

THE INTENTION OF THE AUTHOR

The October Proclamation is written in such a way that it is impossible to make a mistake as to the
intention of its author.

Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme Court of the
United States, the following:
 When the words in their literal sense have a plain meaning, courts must be very cautious in
allowing their imagination to give them a different one. Guild vs. Walter, 182 Mass., 225, 226
(1902)

Upon questions of construction when arbitrary rule is involved, it is always more important to
consider the words and the circumstances than even strong analogies decisions. The
successive neglect of a series of small distinctions, in the effort to follow precedent, is very
liable to end in perverting instruments from their plain meaning. In no other branch of the law
(trusts) is so much discretion required in dealing with authority. . . . There is a strong
presumption in favor of giving them words their natural meaning, and against reading them
as if they said something else, which they are not fitted to express. (Merrill vs. Preston, 135
Mass., 451, 455 (1883).

When the words of an instrument are free from ambiguity and doubt, and express plainly, clearly and
distinctly the sense of the framer, there is no occasion to resort to other means of interpretation. It is
not allowable to interpret what needs no interpretation.

Very strong expression have been used by the courts to emphasize the principle that they are to
derive their knowledge of the legislative intention from the words or language of the statute itself
which the legislature has used to express it. The language of a statute is its most natural guide. We
are not liberty to imagine an intent and bind the letter to the intent.

The Supreme Court of the United States said: "The primary and general rule of statutory
construction is that the intent of the law-maker is to be found in the language that he has used. He is
presumed to know the meaning of the words and the rules of grammar. The courts have no function
of legislation, and simply seek to ascertain the will of the legislator. It is true that there are cases in
which the letter of the statute is not deemed controlling, but the cases are few and exceptional and
only arise where there are cogent reasons for believing that the letter does not fully and accurately
disclose the intent. No mere ommission, no mere failure to provide for contingencies, which it may
seem wise should have specifically provided for will justify any judicial addition to the language of the
statute." (United States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.)

That the Government of the Commonwealth of the Philippines shall be the sole and only government
in our country; that our laws are in full force and effect and legally binding; that "all laws, regulations
and processes of any other government are null and void and without legal effect", are provisions
clearly, distinctly, unmistakably expressed in the October Proclamation, as to which there is no
possibility of error, and there is absolutely no reason in trying to find different meanings of the plain
words employed in the document.

As we have already seen, the annulled processes are precisely judicial processes, procedures and
proceedings, including the one which is under our consideration.

THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY

Although, as we have already stated, there is no possible mistakes as to the meaning of the words
employed in the October Proclamation, and the text of the document expresses, in clear-cut
sentences, the true purposes of its author, it might not be amiss to state here what was the policy
intended to be established by said proclamation.

It is a matter of judicial knowledge that in the global war just ended on September 2, 1945, by the
signatures on the document of unconditional surrender affixed by representatives of the Japanese
government, the belligerents on both sides resorted to what may call war weapons of psychological
character.

So Japan, since its military forces occupied Manila, had waged an intensive campaign propaganda,
intended to destroy the faith of the Filipino people in America, to wipe out all manifestations of
American or occidental civilization, to create interest in all things Japanese, which the imperial
officers tried to present as the acme of oriental culture, and to arouse racial prejudice among
orientals and occidentals, to induce the Filipinos to rally to the cause of Japan, which she tried to
make us believe is the cause of the inhabitants of all East Asia.

It is, then, natural that General MacArthur should take counter-measures to neutralize or annul
completely all vestiges of Japanese influence, specially those which might jeopardize in any way his
military operations and his means of achieving the main objective of the campaign of the liberation,
that is, to restore in our country constitutional processes and the high ideals constitute the very
essence of democracy.

It was necessary to free, not only our territory, but also our spiritual patrimony. It was necessary, not
only to restore to us the opportunity of enjoying the physical treasures which a beneficent
Providence accumulated on this bountiful land, the true paradise in the western Pacific, but to
restore the full play of our ideology, that wonderful admixture of sensible principles of human
conduct, bequeathed to us by our Malayan ancestors, the moral principles of the Christianity
assimilated by our people from teachers of Spain, and the common-sense rules of the American
democratic way of life.

It was necessary to free that ideology from any Japanese impurity.

Undoubtedly, the author of the proclamation thought that the laws, regulations, and processes of all
the branches of the governments established under the Japanese regime, if allowed to continue and
to have effect, might be a means of keeping and spreading in our country the Japanese influence,
with the same deadly effects as the mines planted by the retreating enemy.

The government offices and agencies which functioned during the Japanese occupation represented
a sovereignty and ideology antagonistic to the sovereignty and ideology which MacArthur's forces
sought to restore in our country.

Under chapter I of the Japanese Constitution, it is declared that Japan shall reigned and governed
by a line Emperors unbroken for ages eternal (Article 1); that the Emperor is sacred and inviolable
(Article 3); that he is the head of the Empire, combining in himself the rights of the sovereignty
(Article 4); that he exercises the legislative power (Article 5); that he gives sanction to laws, and
orders to be promulgated and executed (Article 6);that he has the supreme command of the Army
and Navy (Article 11); that he declares war, makes peace, and concludes treaties (Article 13).

There is no reason for allowing to remain any vestige of Japanese ideology, the ideology of a people
which as confessed in a book we have at our desk, written by a Japanese, insists in doing many
things precisely in a way opposite to that followed by the rest of the world.

It is the ideology of a people which insists in adopting the policy of self-delusion; that believes that
their Emperor is a direct descendant of gods and he himself is a god, and that the typhoon which
occured on August 14, 1281, which destroyed the fleet with which Kublai Khan tried to invade Japan
was the divine wind of Ise; that defies the heinous crime of the ronin, the 47 assassins who, in order
to avenge the death of their master Asano Naganori, on February 3, 1703, entered stealthily into the
house of Yoshinaka Kiro and killed him treacherously.
It is an ideology which dignifies harakiri or sepukku, the most bloody and repugnant from suicide,
and on September 13, 1912, on the occasion of the funeral of Emperor Meiji, induced General
Maresuke Nogi and his wife to practice the abhorrent "junshi", and example of which is offered to us
in the following words of a historian:

When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that, following the
occasion, his attendants were assembled to from the hito-bashira (pillar-men) to gird the
grave. They were buried alive in circle up to the neck around the thomb and "for several days
they died not, but wept and wailed day night. At last they died not, but wept and wailed day
night. At last they did not rotted. Dogs and cows gathered and ate them." (Gowen, an Outline
of History of Japan, p. 50.)

The practice shows that the Japanese are the spiritual descendants of the Sumerians, the ferocious
inhabitants of Babylonia who, 3500 years B. C., appeared in history as the first human beings to
honor their patesis by killing and entombing with him his window, his ministers, and notable men and
women of his kingdom, selected by the priests to partake of such abominable honor. (Broduer, The
Pageant of Civilization, pp. 62-66.)

General MacArthur sought to annul completely the officials acts of the governments under the
Japanese occupation, because they were done at the shadow of the Japanese dictatorship, the
same which destroyed the independence of Korea, the "Empire of Morning Frehsness"; they violated
the territorial integrity of China, invaded Manchuria, and initiated therein the deceitful system of
puppet governments, by designating irresponsible Pu Yi as Emperor of Manchukuo; they violated
the trusteeship granted by the Treaty of Versailles by usurping tha mandated islands in the Pacific;
they initiated that they call China Incident, without war declaration, and, therefore, in complete
disregard of an elemental international duty; they attacked Pearl Harbor treacherously, and
committed a long series of the flagrant violations of international law that have logically bestowed on
Japan the title of the bandit nation in the social world.

The conduct of the Japanese during the occupation shows a shocking an anchronism of a modern
world power which seems to be re-incarnation of one whose primitive social types of pre-history,
whose proper place must be found in an archeological collection. It represents a backward jump in
the evolution of ethical and juridical concepts, a reversion that, more than a simple pathological
state, represents a characteristics and well defined case of sociological teratology.

Since they entered the threshold of our capital, the Japanese had announced that for every one of
them killed they would kill ten prominent Filipinos. They promised to respect our rights by submitting
us to the wholesale and indiscriminate slapping, tortures, and atrocious massacres. Driving nails in
the cranium, extraction of teeth and eyes, burnings of organs, hangings, diabolical zonings, looting
of properties, establishments of redlight districts, machine gunning of women and children, interment
of alive persons, they are just mere preludes of the promised paradised that they called "Greater
East Asia Co-Prosperity Sphere".

They promised religious liberty by compelling all protestant sects to unite, against the religious
scruples and convictions of their members, in one group, and by profaning convents, seminaries,
churches, and other cult centers of the Catholics, utilizing them as military barracks, munitions
dumps, artillery base, deposits of bombs and gasoline, torture chambers and zone, and by
compelling the government officials and employees to face and to bow in adoration before that
caricature of divinity in the imperial palace of Tokyo.

The Japanese offered themselves to be our cultural mentors by depriving us of the use of our
schools and colleges, by destroying our books and other means of culture, by falsifying the contents
of school texts, by eliminating free press, the radio, all elemental principles of civilized conduct, by
establishing classes of rudimentary Japanese so as to reduce the Filipinos to the mental level of the
rude Japanese guards, and by disseminating all kinds of historical, political, and cultural falsehoods.

Invoking our geographical propinquity and race affinity, they had the insolence of calling us their
brothers, without the prejuce of placing of us in the category of slaves, treating the most prominent
Filipinos in a much lower social and political category than that of the most ignorant and brutal
subject of the Emperor.

The civil liberties of the citizens were annulled. Witnesses and litigants were slapped and tortured
during investigations. In the prosecuting attorney's offices, no one was safe. When the Japanese
arrested a person, the lawyer who dared to intercede was also placed under arrest. Even courts
were not free from their dispotic members. There were judges who had to trample laws and shock
their conscience in order not to disgust a Nipponese.

The most noble of all professions, so much so that the universities of the world could not conceive of
higher honor that may be conferred than that of Doctor of Laws, became the most despised. It was
dangerous to practice the profession by which faith in the effectiveness of law is maintained; citizens
feel confident in the protection of their liberties, honor, and dignity; the weak may face the powerful;
the lowest citizen is not afraid of the highest official; civil equality becomes reality; justice is
admnistered with more efficiency; and democracy becomes the best system of government and the
best guaranty for the welfare and happiness of the individual human being. In fact, the profession of
law was annulled, and the best lawyers for the unfortunate prisoners in Fort Santiago and other
centers of torture were the military police, concubines, procurers, and spies, the providers of war
materials and shameful pleasures, and the accomplices in fraudulent transactions, which were the
specialty of many naval and military Japanese officers.

The courts and Filipino government officials were completely helpless in the question of protecting
the constitutional liberties and fundamental rights of the citizens who happen to be unfortunate
enough to fall under the dragnet of the hated kempei. Even the highest government officials were not
safe from arrest and imprisonment in the dreaded military dungeons, where torture or horrible death
were always awaiting the defenseless victim of the Japanese brutality.

May any one be surprised if General MacArthur decided to annul all the judicial processes?

The evident policy of the author of the October Proclamation can be seen if we take into
consideration the following provisions of the Japanese Constitution:

ART. 57. The Judicature shall be exercised by the Courts of Law according to law, in the
name of the Emperor.

ART. 61. No suit at law, which relates to rights alleged to have been infringed by the illegal
measures of the executive authority .. shall be taken cognizance of by a Court of Law.

INTERNATIONAL LAW

Nobody dared challenge the validity of the October Proclamation.

Nobody dared challenge the authority of the military Commander in Chief who issued it.
Certainly not because of the awe aroused by the looming figure of General of the Army Douglas
MacArthur, the Allied Supreme Commander, the military hero, the greatest American general, the
Liberator of the Philippines, the conqueror of Japan, the gallant soldier under whose authority the
Emperor of the Japan, who is supposed to rule supreme for ages as a descendant of gods, is
receiving orders with the humility of a prisoner of war.

No challenge has been hurled against the proclamation or the authority of the author to issue it,
because everybody acknowledges the full legality of its issuance.

But because the proclamation will affect the interest and the rights of a group of individuals, and to
protect the same, a way is being sought to neutralize the effect of the proclamation.

The way found is to invoke international law. The big and resounding word is considered as a
shibboleth powerful enough to shield the affected persons from the annulling impact.

Even then, international law is not invoked to challenge the legality or authority of the proclamation,
but only to construe it in a convenient way so that judicial processes during the Japanese
occupation, through an exceptional effort of the imagination, might to segregated from the processes
mentioned in the proclamation.

An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable science. On the
country, it is developing incessantly, it is perpetually changing in forms. In each turn it advances or
recedes, according to the vicissitudes of history, and following the monotonous rythm of the ebb and
rise of the tide of the sea.

Le driot des gens, en effet, n'est point une science fixe est immuable: bein au contraire, il se
developpe sans cesse, il change eternellement de formes; tour il avance et il recule, selon
less vicissitudes de histoire et suivan un rhythm monotone qui est comme le flux et le reflux
d'un mer. (M. Revon, De l'existence du driot international sous la republique romain.)

Another author has this to say:

International law, if it is or can be a science at all, or can be, at most a regulative science,
dealing with the conduct of States, that is, human beings in a certain capacity; and its
principles and prescriptions are not, like those of science proper, final and unchanging. The
substance of science proper is already made for man; the substance of international is
actually made by man, — and different ages make differently." (Coleman Philippson, The
International Law and Custom of Ancient Greece of Rome, Vol. I, p. 50.)

"Law must be stable, and yet it cannot stand still." (Pound, Interpretations of Legal History., p. 1. )
Justice Cardozo adds: "Here is the great antimony confronting us at every turn. Rest and motion,
unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue,
must find some path compromise." (The Growth of Law p. 2.) Law is just one of the manifestations of
human life, and "Life has relations not capable of division into inflexible compartments. The moulds
expand and shrink," (Glanzer vs. Shepard, 233 N.Y., 236, 241.)

The characteristic plasticity of law is very noticeable, much more than in any other department, in
international law.

In a certain matters it is clear we have made substantial progress, but in other points, he (M.
Revon) maintains, we have retrograded; for example, in the middle ages the oath was not
 always respected as faithfully as in ancient Rome; and nearer our own times, in the
seventeenth century, Grotius proclaims the unquestioned right of the belligerents to
massacre the women and the children of the enemy; and in our more modern age the due
declaration of war which Roman always conformed to has not been invariably observed.
(Coleman Philippson, The International Law and Custom of Ancient Greece and Rome, Vol.
I, p. 209.)

Now let us see if any principle of international law may effect the enforcement of the October
Proclamation.

In this study we should be cautioned not to allow ourselves to be deluded by generalities and
vagueness which are likely to lead us easily to error, in view of the absence of codification and
statutory provisions.

Our Constitution provides:

The Philippines renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the Nation. (Sec. 3, Art. II.)

There being no codified principles of international law, or enactments of its rules, we cannot rely on
merely legal precepts.

With the exception of international conventions and treaties and, just recently, the Charter of the
United Nations, adopted in San Francisco Conference on June 26, 1945, we have to rely on
unsystemized judicial pronouncements and reasonings and on theories, theses, and propositions
that we may find in the works of authors and publicists.

Due to that characteristic pliability and imprecision of international law, the drafters of our
Constitution had to content themselves with "generally accepted principles."

We must insists, therefore, that the principles should be specific and unmistakably defined and that
there is definite and conclusive evidence to the effect that they generally accepted among the
civilized nations of the world and that they belong to the current era and no other epochs of history.

The temptation of assuming the role of a legislator is greater in international law than in any other
department of law, since there are no parliaments, congresses, legislative assemblies which can
enact laws and specific statutes on the subject. It must be our concern to avoid falling in so a great
temptation, as its, dangers are incalculable. It would be like building castles in the thin air, or trying to
find an exit in the thick dark forest where we are irretrievably lost. We must also be very careful in
our logic. In so vast a field as international law, the fanciful wandering of the imagination often impair
the course of dialistics.

THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW

Is there any principle of international law that may effect the October Proclamation?

We tried in vain to find out in the majority opinion anything as to the existence of any principle of
international law under which the authority of General MacArthur to issue the proclamation can
effectively be challenged.
No principle of international law has been, or could be invoked as a basis for denying the author of
the document legal authority to issue the same or any part thereof.

We awaited in vain for any one to dare deny General MacArthur the authority, under international
law, to declare null and void and without effect, not only the laws and regulations of the governments
under the Japanese regime, but all the processes of said governments, including judicial processes.

If General MacArthur, as commander in Chief of the American Armed Forces of Liberation, had
authority, full and legal, to issue the proclamation, the inescapable result will be the complete
viodance and nullity of all judicial processes, procedures, and proceedings of all courts under the
Japanese regime.

But those who are sponsoring the cause of said judicial processes try to achieve their aim, not by
direct means, but by following a tortuous side-road.

They accept and recognize the full authority of the author of the proclamation to issue it and all its
parts, but they maintain that General MacArthur did not and could not have in mind the idea of
nullifying the judicial processes during the Japanese occupation, because that will be in violation of
the principles of international law.

If we follow the reasoning of the majority opinion we will have to reach the conlusion that the world
"processes" does not appear at all in the October Proclamation.

It is stated more than once, and reiterated with dogmatic emphasis, that under the principles of
international law the judicial processes under an army occupation cannot be invalidated.

But we waited in vain for the specific principle of international law, only one of those alluded to, to be
pointed out to us.

If the law exist, it can be pointed out. If the principle exists, it can stated specifically. The word is
being used very often in plural, principles, but we need only one to be convinced.

The imagined principles are so shrouded in a thick maze of strained analogies and reasoning, that
we confess our inability even to have a fleeting glimpse at them through their thick and invulnerable
wrappers.

At every turn international law, the blatant words, are haunting us with the deafening bray of a
trumpet, but after the transient sound has fled away, absorbed by the resiliency of the vast
atmosphere, the announced principles, which are the very soul of international law, would disappear
too with the lighting speed of a vanishing dream.

WEAKNESS OF THE MAJORITY POSITION

In the majority opinion three questions are propounded: first, whether judicial acts and proceedings
during the Japanese occupation are valid even after liberation; second whether the October
Proclamation had invalidated all judgement and judicial proceedings under the Japanese regime;
and third, whether the present courts of the Commonwealth may continue the judicial proceedings
pending at the time of liberation.

As regards the first question, it is stated that it is a legal tourism in political and international law that
all acts of a de facto government are good and valid, that the governments established during the
Japanese occupation. that is, the Philippine Executive Commission and the Republic of the
Philippines, were de facto governments, and that it necessarily follows that the judicial acts and
proceedings of the courts of those governments, "which are not of a political complexion," were good
and valid, and by virtue of the principle of postliminium, remain good and valid after the liberation.

In the above reasoning we will see right away how the alleged legal truism in political and
international law, stated as a premise in a sweeping way, as an absolute rule, is immediately
qualified by the exception as to judicial acts and proceedings which are of a "political complexion."

So it is the majority itself which destroys the validity of what it maintains as a legal truism in political
and international law, by stating from the beginning of the absolute proposition that all acts and
proceedings of the legislative, executive, and judicial departments of a de facto governments are
good and valid.

It is be noted that no authority, absolutely no authority, has been cited to support the absolute and
sweeping character of the majority proposition as stated in their opinion.

No authority could be cited, because the majority itself loses faith in the validity of such absolute and
sweeping proposition, by establishing an unexplained exception as regards the judicial acts and
proceedings of a "political complexion."

Besides, it is useless to try to find in the arguments of the majority anything that may challenge the
power, the authority of a de jure government to annul the official acts of a de facto government, or
the legal and indisputable authority of the restored legitimate government to refuse to recognize the
official acts, legislative, executive and judicial, of the usurping government, once the same is ousted.

As to the second question, the majority argues that the judicial proceedings and judgments of the de
factogovernments under the Japanese regime being good and valid, "it should be presumed that it
was not, and could not have been, the intention of General Douglas MacArthur to refer to judicial
processes, when he used the last word in the October Proclamation, and that it only refers to
government processes other than judicial processes or court proceedings."

The weakness and absolute ineffectiveness of the argument are self-evident.

It is maintained that when General MacArthur declared the processes of the governments under the
Japanese regime null and void, he could not refer to judicial processes, because the same are valid
and remained so under the legal truism announced by the majority to the effect that, under political
and international law, all official acts of a de facto government, legislative, executive or judicial, are
valid.

But we have seen already how the majority excepted from said legal truism the judicial processes of
"political complexion."

And now it is stated that in annulling the processes of the governments under Japanese occupation,
General MacArthur referred to "processes other than judicial processes."

That is, the legislative and executive processes.

But, did not the majority maintain that all acts and proceedings of legislative and executive
departments of a de factogovernments are good and valid? Did it not maintain that they are so as a
"legal truism in political and international law?"
Now if the reasoning of the majority to the effect that General MacArthur could not refer to judicial
processes because they are good and valid in accordance with international law, why should the
same reasoning not apply to legislative and executive processes?

Why does the majority maintain that, notwithstanding the fact that, according that said legal truism,
legislative and executive official acts of de facto governments are good and valid, General
MacArthur referred to the latter in his annulling proclamation, but not to judicial processes?

If the argument is good so as to exclude judicial processes from the effect of the October
Proclamation, we can see no logic in considering it bad with respect to legislative and executive
processes.

If the argument is bad with respect to legislative and executive processes, there is no logic in holding
that it is not good with respect to judicial processes.

Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that General
MacArthur did not declare null and void any processes, at all, whether legislative processes,
executive processes, or judicial processes, and that the word "processes" used by him in the
October Proclamation is a mere surplusage or an ornamental literary appendix.

The absurdity of the conclusion unmasks the utter futility of the position of the majority, which is but
a mere legal pretense that cannot stand the least analysis or the test of logic.

A great legal luminary admonished that we must have courage to unmasks pretense if we are to
reach a peace that will abide beyond the fleeting hour.

It is admitted that the commanding general of a belligerent army of occupation as an agent of his
government, "may not unlawfully suspend existing laws and promulgate new ones in the occupied
territory if and when exigencies of the military occupation demand such action," but it is doubted
whether the commanding general of the army of the restored legitimate government can exercise the
same broad legislative powers.

We beg to disagree with a theory so unreasonable and subversive.

We cannot accept that the commanding general of an army of occupation, of a rebellious army, of an
invading army, or of a usurping army, should enjoy greater legal authority during the illegal, and in
the case of the Japanese, iniquitous and bestial occupation, than the official representative of the
legitimate government, once restored in the territory wrested from the brutal invaders and
aggressors. We cannot agree with such legal travesty.

Broad and unlimited powers are granted and recognized in the commanding general of an army of
invasion, but the shadow of the vanishing alleged principle of international law is being brandished to
gag, manacle, and make completely powerless the commander of an army of liberation to wipe out
the official acts of the government for usurpation, although said acts might impair the military
operation or neutralize the public policies of the restored legitimate government.

We are not unmindful of the interest of the persons who might be adversely affected by the
annulment of the judicial processes of the governments under the Japanese regime, but we cannot
help smiling when we hear that chaos will reign or that the world will sink.
It is possible that some criminals will be let loose unpunished, but nobody has ever been alarmed
that the President, in the exercise of his constitutional powers of pardon and amnesty, had in the
past released many criminals from imprisonment. And let us not forget that due to human limitations,
in all countries, under all governments, in peace or in war, there were, there are, and there will
always be unpunished criminals, and that situation never caused despair to any one.

We can conceive of inconveniences and hardships, but they are necessary contributions to great
and noble purposes. Untold sacrifices were always offered to attain high ideals and in behalf of
worthy causes.

We cannot refrain from feeling a paternal emotion for those who are trembling with all sincerity
because of the belief that the avoidance of judicial proceedings of the governments under the
Japanese regime "would paralyze the social life of the country." To allay such fear we must remind
them that the country that produced many great hereos and martyrs; that contributed some of
highest morals figures that humanity has ever produced in all history; which inhabited by a race
which was able to traverse in immemorial times the vast expanses of the Indian Ocean and the
Pacific with inadequate means of navigation, and to inhabit in many islands so distantly located, from
Madagascar to the eastern Pacific; which made possible the wonderful resistance of Bataan and
Corregidor, can not have a social life so frail as to be easily paralyzed by the annulment of some
judicial proceedings. The Japanese vandalisms during the last three years of nightmares and bestial
oppression, during the long period of our national slavery, and the wholesale massacres and
destructions in Manila and many other cities and municipalities and populated areas, were not able
to paralyze the social life of our people. Let us not loss faith so easily in the inherent vitality of the
social life of the people and country of Rizal and Mabini.

It is insinuated that because of the thought that the representative of the restored sovereign power
may set aside all judicial processes of the army of occupation, in the case to courts of a future
invasions, litigants will not summit their cases to courts whose judgement may afterwards be
annulled, and criminals would not be deterred from committing offenses in the expectancy that they
may escape penalty upon liberation of the country. We hope that Providence will never allow the
Philippines to fall again under the arms of an invading army, but if such misfortune will happen, let
the October Proclamation serve as a notice to the ruthless invaders that the official acts of the
government of occupation will not merit any recognition from the legitimate government, especially if
they should not conduct themselves, as exemplified by the Japanese, in accordance with the rules of
action of a civilized state.

One conclusive evidence of the untenableness of the majority position is the fact that it had to resort
to Executive Order No. 37, issued on March 10, 1945, providing "that all cases that have heretofore
been appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision."
The far-fetched theory is advanced that this provision impliedly recognizes the court processes
during the Japanese military occupation, on the false assumption that it refers to the Court of
Appeals existing during the Japanese regime. It is self-evident that the Executive Order could have
referred only to the Commonwealth Court of Appeals, which is the one declared abolished in said
order. Certainly no one will entertain the absurd idea that the President of the Philippines could have
thought of abolishing the Court of Appeals under the government during the Japanese occupation.
Said Court of Appeals disappeared with the ouster of the Japanese military administration from
which it derived its existence and powers. The Court of Appeals existing on March 10, 1945, at the
time of the issuance of Executive Order No. 37, was the Commonwealth Court of Appeals and it was
the only one that could be abolished.

Without discussing the correctness of principle stated the majority opinion quotes from Wheaton the
following: "Moreover when it is said that occupier's acts are valid and under international law should
not be abrogated by the subsequent conqueror, it must be remembered that on crucial instances
exist to show that if his acts should be reversed, any international wrong would be committed. What
does happen is that most matters are allowed to stand by the stored government, but the matter can
hardly be put further than this." (Wheaton, International Law, War, 7th English edition of 1944, p.
245)

Then it says that there is no doubt that the subsequent conqueror has the right to abrogate most of
the acts of the occupier, such as the laws, regulations and processes other than the judicial of the
government established by the belligerent occupant.

It is evident that the statement just quoted is a complete diversion from the principle stated in the in
an unmistakable way by Wheaton, who says in definite terms that "it must be remembered that no
crucial instances exist to show that if his acts (the occupant's) should be reversed, any international
wrong would be committed."

It can be clearly seen that Wheaton does not make any distinction or point out any exception.

But in the majority opinion the principle is qualified, without stating any reason therefore, by limiting
the right of the restored government to annul "most of the acts of the occupier" and "processes other
than judicial."

The statement made by the respondent judge after quoting the above-mentioned principle, as stated
by Wheaton, to the effect that whether the acts of military occupant should be considered valid or
not, is a question that is up to the restored government to decide, and that there is no rule of
international law that denies to the restored government the right to exercise its discretion on the
matter, is quoted without discussion in the majority opinion.

As the statement is not disputed, wee are entitled to presume that it is concurred in and, therefore,
the qualifications made in the statement in the majority opinion seem to completely groundless.

THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS OF
THE LEGITIMATE GOVERNMENT

The majority opinion is accumulating authorities to show the many duties imposed by international
law on the military occupant of an invaded country.

And from said duties it is deduced that the legitimate government, once restored in his own territory,
is bound to respect all the official acts of the government established by the usurping army, except
judicial processes political complexion.

The reasoning calls for immediate opposition. It is absolutely contrary to all principles of logic.

Between the duties imposed in the military occupant and the legal prerogatives of the legitimate
government there are no logical relationship or connection that might bind the ones with the others.

The military occupants is duty bound to protect the civil rights of the inhabitants, but why should the
legitimate government necessarily validate the measures adopted by the said occupant in the
performance of this duty, if the legitimate government believes his duty to annul them for weighty
reasons?
The military occupant is duty bound to establish courts of justice. Why should the legitimate
government validate the acts of said courts, if it is convinced that said courts were absolutely
powerless, as was the case during the Japanese occupation, to stop the horrible abuses of the
military police, to give relief to the victims of zoning and Fort Santiago tortures, to protect the
fundamental human rights of the Filipinos — life, property, and personal freedom?

The majority opinion recognizes in the military occupant the power to annul the official acts of the
ousted and supplanted legitimate government, a privilege which is inversely denied to the last. This
preference and predilection in favor of the military occupant, that is in favor of the invader and
usurper, and against the legitimate government, is simply disconcerting, if we have to say the least.

PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS

The invading military occupant is duty bound to establish and maintain courts of justice in the
invaded territory, for the protection of the inhabitants thereof. It is presumed that the restored
legitimate government will respect the acts of said courts of the army of occupation. Therefore, it is a
principle of international law that said acts are valid and should be respected by the legitimate
government. It is presumed that General MacArthur is acquainted with such principle, discovered or
revealed through presumptive operations, and it is presumed that he had not the intention of
declaring null and void the judicial processes of the government during the Japanese regime.
Therefore, his October Proclamation, declaring null and void and without effect "all processes" of
said governments, in fact, did not annul the Japanese regime judicial processes.

So run the logic of the majority.

They don't mind the that General MacArthur speaks in the October Proclamation as follows:

NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as Commander-in-Chief

of the military forces committed to the liberation of the Philippines, do hereby proclaim and declare:

xxx xxx xxx

3. That all laws, regulations and processes of any other government in the Philippines than that of
the said Commonwealth are null and void and without legal effect in areas of the Philippines free of
enemy occupation and control. (emphasis supplied.)

General MacArthur says categorically "all processes", but the majority insists on reading differently,
that, is: "NOT ALL processes." The majority presume, suppose, against the unequivocal meaning of
simple and well known words, that when General MacArthur said "all processes", in fact, he said "not
all processes", because it is necessary, by presumption, by supposition, to exclude judicial
processes.

If where General MacArthur says "all", the majority shall insist on reading "not all", it is impossible to
foresee the consequences of such so stubborn attitude, but it is possible to understand how they
reached the unacceptable possible conclusion which we cannot be avoid opposing and exposing.

Are we to adopt and follow the policy of deciding cases submitted to our consideration, by
presumption and suppositions putting aside truths and facts? Are we to place in the documents
presented to us, such as the October Proclamation, different words than what are written therein?
Are we to read "not all", where it is written "all"?
We are afraid to such procedure is not precisely the most appropriate to keep public confidence in
the effectiveness of the administration of justice.

That is why we must insists that in the October Proclamation should be read what General
MacArthur has written in it, that is, that, besides laws and regulations, he declared and proclaimed
null and void "ALL PROCESSES", including naturally judicial processes, of the governments under
the Japanese regime.

THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE JAPANESE REGIME

JUDICIAL PROCESSES

Now we come to the third and last question propounded in the majority opinion.

The jurisdiction of the Commonwealth tribunals is defined, prescribed, and apportioned by legislative
act.

It is provided so in our Constitution. (Section 2, Article VIII.)

The Commonwealth courts of justice are continuations of the courts established before the
inauguration of the Commonwealth and before the Constitution took effect on November 15, 1935.
And their jurisdiction is the same as provided by existing laws at the time of inauguration of the
Commonwealth Government.

Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice of the
Philippines, is the one that defines the jurisdiction of justice of the peace and municipal courts,
Courts of First Instance, and the Supreme Court. It is not necessary to mention here the jurisdiction
of the Court of Appeals, because the same has been abolished by Executive Order No. 37.

No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring on the
Commonwealth tribunals jurisdiction to continue the judicial processes or proceedings of tribunals
belonging to other governments, such as the governments established during the Japanese
occupation.

The jurisdiction of our justice of the peace and municipal courts is provided in section 68, chapter V,
of Act No. 136. The original and appellate jurisdiction of the Courts of First Instance is provided in
the sections 56, 57, Chapter IV, of Act No. 136. The original and appellate jurisdiction of the
Supreme Court is provided in 17 and 18, Chapter II, of the same Act. The provisions of the above-
cited do not authorize, even implicitly, any of the decisions and judgements of tribunals of the
governments, nor to continue the processes or proceedings of said tribunals.

NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE PREVAILING IN THE

PHILIPPINES AND IN THE UNITED STATES

Taking aside the question as to whether the judicial processes of the government established during
the Japanese occupation should be considered valid or not, in order that said processes could be
continued and the Commonwealth tribunals could exercise proper jurisdiction to continue them,
under the well- established legal doctrine, prevailing not only in the Philippines, but also in the proper
enabling law.

Almost a half a century ago, in the instructions given by President McKinley on April 7, 1900, for the
guidance of the Philippine Commission, it was stated that, in all the forms of the govenment and
administrative provisions which they were authorized to prescribed, the Commission should bear in
mind that the government which they were establishing was designed not for the satisfaction of the
Americans or for the expression of their of their theoretical views, but for the happiness, peace and
prosperity of the people of the Philippines, and the measures adopted should be made to conform to
their customs, their habits, and even their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and effective government.

Notwithstanding the policy so outlined, it was not enough for the Philippine Commission to create
and establish the courts of justice provided in Act No. 136, in order that said tribunals could take
cognizance and continue the judicial proceedings of the tribunals existing in the Philippines at the
time the American occupation.

It needed specific enabling provisions in order that the new tribunals might continue the processes
pending in the tribunals established by the Spaniards, and which continued to function until they
were substituted by the courts created by the Philippine Commission.

So it was done in regards to the transfer of the cases pending before the Spanish Audiencia to the
newly created Supreme Court, in sections 38 and 39 of Act No. 136 quoted as follows:

SEC. 38. Disposition of causes, actions, proceedings, appeals, records, papers, and so forth,
pending in the existing Supreme Court and in the "Contencioso Administravo." — All records,
books, papers, causes, actions, proceedings, and appeals logged, deposited, or pending in
the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal
called "Contencioso Administravo," are transferred to the Supreme Court above provided for
which, has the same power and jurisdiction over them as if they had been in the first instance
lodged, filed, or pending therein, or, in case of appeal, appealed thereto.

SEC. 39. Abolition of existing Supreme Court. — The existing Audiencia or Supreme Court is
hereby abolished, and the Supreme Court provided by this Act is substituted in place thereof.

Sections 64 and 65 of the same Act allowed the same procedure as regards the transfer of cases
and processes pending in the abolished Spanish Courts of First Instance to the tribunals of the same
name established by the Philippine Commission.

SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the existing
Courts of First Instance. — All records, books, papers, actions, proceedings, and appeals
lodged, deposited, or pending in the Court of First Instance as now constituted of or any
province are transferred to the Court of First Instance of such province hereby established,
which shall have the same power and jurisdiction over them as if they had been primarily
lodged, deposited, filed, or commenced therein, or in case of appeal, appealed thereto.

SEC. 65. Abolition of existing Courts of First Instance. — The existing Courts First Instance
are hereby abolished, and the Courts of First Instance provided by this Act are substituted in
place thereof.

The same procedure has been followed by the Philippine Commission eventhough the courts of
origin of the judicial processes to be transferred and continued belonged to the same government
and sovereignty of the courts which are empowered to continue said processes.

So section 78 of Act No. 136, after the repeal of all acts conferring upon American provost courts in
the Philippines jurisdiction over civil actions, expressly provided that said civil actions shall be
transferred to the newly created tribunals.
And it provided specifically that "the Supreme Court, Courts of the First Instance and courts of the
justice of the peace established by this Act (No. 136) are authorized to try and determine the actions
so transferred to them respectively from the provost courts, in the same manner and with the same
legal effect as though such actions had originally been commenced in the courts created" by virtue
of said Act.

MUNICIPAL COURTS UNDER ACT NO. 183

On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of Manila, No. 183.

Two municipal courts for the city were created by section 40 of said Act, one for the northern side of
Pasig River and the other for the southern side.

They were courts with criminal jurisdiction or identical cases under the jurisdiction of the justices of
the peace then existing in Manila. Although both courts were of the same jurisdiction, in order that
the criminal cases belonging to the justice of the peace courts may be transferred to the municipal
courts just created, and the proceedings may be continued by the same, the Philippine Commission
considered it necessary to pas the proper enabling act.

So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all criminal cases and
proceedings pending in the justices of the peace of Manila are transferred to the municipal courts,
which are conferred the jurisdiction to continue said cases and proceedings.

THE CABANTAG CASE

On August 1, 1901, Narciso Cabantag was convicted of murder by a military commission.

(Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed on December 10, 1901, and his
execution by hanging was set for January 12,1902. .

On December 26, 1901, he fled, but surrendered to the authorities on July 18, 1902. The Civil
Governor on December 2, 1903, commuted the death penalty to 20 years imprisonment. The
commutation was approved by the Secretary of War, following instructions of the President.

Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of the military
commission which convicted him, there was no existing tribunal which could order the execution of
the penalty of imprisonment.

The Supreme Court denied the writ, but stated that, if the petitioner had filed the writ before the
enactment of Act No. 865, the question presented to the Supreme Court would have been different.

Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided that decisions
rendered by the provost courts and military commission shall be ordered executed by the Courts of
First Instance in accordance with the procedure outlined in said Act.

It is evident from the foregoing that this Supreme Court has accepted and confirmed the doctrine of
the necessity of an enabling act in order that our Courts of First Instance could exercise jurisdiction
to execute the decision of the abolished provost courts and military commission.

It is evident that the doctrine is applicable, with more force, to the judicial processes coming from
governments deriving their authority from a foreign enemy state.
 THE DOCTRINE IN THE UNITED STATES

It is also evident that the Congress of the United States, by enacting the Bill of the Philippines on
July 1, 1902, confirmed also the same doctrine.

In effect, in section 9 of said Act, the Congress approved what the Philippine Commission did as to
the jurisdiction of the courts established and transfer of cases and judicial processes, as provided in
Acts Nos. 136, 186, and 865.

The same doctrine was adopted by the United States government as part of its international policy,
as could be seen in Article XII of the Treaty concluded with Spain on December 10, 1898, in Paris.

Even in 1866 the Congress of the United States followed the same doctrine.

The suit, shown by the record, was originally instituted in the District Court of the United
States for the District of Louisiana, where a decree was rendered for the libellant. From the
decree an appeal was taken to the Circuit Court, where the case was pending, when in 1861,
the proceedings of the court were interrupted by the civil war. Louisiana had become
involved in the rebellion, and the courts and officers of the United States were excluded from
its limits. In 1862, however, the National authority had been partially reestablished in the
State, though still liable to the overthrown by the vicissitudes of war. The troops of the Union
occupied New Orleans, and held military possession of the city and such other portions of
the State as had submitted to the General Government. The nature of this occupation and
possession was fully explained in the case of The Vinice.

Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclamation,

instituted a Provisional Court of the State of Louisiana, with authority, among other powers,
to hear, try, and determine all causes in admiralty. Subsequently, by consent of parties, this
cause was transferred into the Provisional Court thus, constituted, and was heard, and a
decree was again rendered in favor of the libellants. Upon the restoration of civil authority in
the State, the Provincial Court, limited in duration, according to the terms of the
proclamation, by the event, ceased to exist.

On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings in the
Provisional Court, proper for the jurisdiction of the Circuit Court of the United States for the
Eastern District of Louisiana, should be transferred to that court, and heard, and determined
therein; and that all judgements, orders, and decrees of the Provisional Court in causes
transferred to the Circuit Court should at once become the orders, judgements, and decrees
of that court, and might be enforced, pleaded, and proved accordingly.

It is questioned upon these facts whether the establishment by the President of a Provisional
Court was warranted by the Constitution.

xxx xxx xxx

We have no doubt that the Provisional Court of Louisiana was properly established by the
President in the exercise of this constitutional authority during war; or that Congress had
power, upon the close of the war, and the dissolution of the Provisional Court, to provide for
the transfer of cases pending in that court, and of its judgement and decrees, to the proper
courts of the United States. (U. S. Reports, Wallace, Vol. 9, The Grapeshot, 131-133.)
 JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE VALIDATED BY
CONSTITUTIONAL PROVISION

During the civil war in 1861, the prevailing rebel forces established their own government in
Louisiana.

When the rebel forces were overpowered by the Union Forces and the de facto government was
replaced by the de jure government, to give effect to the judgments and other judicial acts of the
rebel government, from January 26, 1861, up to the date of the adoption of the State Constitution, a
provision to said effect was inserted in said document.

Section 149 of the Louisiana Constitution reads as follows:

All the rights, actions, prosecutions, claims, contracts, and all laws in force at the time of the
adoption of this Constitution, and not inconsistent therewith, shall continue as if it had not
been adopted; all judgments and judicial sales, marriages, and executed contracts made in
good faith and in accordance with existing laws in this State rendered, made, or entered into,
between the 26th day of January, 1861, and the date when this constitution shall be adopted,
are hereby declared to be valid, etc. (U. S. Report, Wallace, Vol. 22, Mechanics' etc.
Bank vs. Union Bank, 281.)

EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE NOT
EXECUTORY

The member states of the United States of America belong to the same nation, to the country, and
are under the same sovereignty.

But judgements rendered in one state are not executory in other states.

To give them effect in other states it is necessary to initiate an original judicial proceedings, and
therein the defendants in the domestic suit may plead bar the sister state judgement puis darrien
continuance. (Wharton, on the Conflict of Laws, Vol. II, p. 1411.)

Under the Constitution of the United States, when a judgement of one state in the Union is
offered in a court of a sister state as the basis of a suit nil debet cannot be pleaded. The only
proper plea is nul tiel record. (Id., p. 1413.).

It is competent for the defendant, however, to an action on a judgement of a sister state, as

to an action on a foreign judgement, to set up as a defense, want of jurisdiction of the court
rendering the judgement; and, as indicating such want of jurisdiction, to aver by plea that the
defendant was not an inhabitant of the state rendering the judgement, and had not been
served with process, and did not enter his appearance; or that the attorney was without
authority to appear. (Id., pp. 1414-1415.)

The inevitable consequence is that the courts of the Commonwealth of the Philippines, in the
absence of an enabling act or of an express legislative grant, have no jurisdiction to take cognizance
and continue the judicial processes, procedures, and proceedings of the tribunals which were
created by the Japanese Military Administration and functioned under the Vargas Philippine
Executive Commission of the Laurel Republic of the Philippines, deriving their authority from the
Emperor, the absolute ruler of Japan, the invading enemy, and not from the Filipino people in whom,
according to the Constitution, sovereignty resides, and from whom all powers of government
emanate.

The position of Honorable Asenio P. Dizon, the respondent judge of the Court of the First Instance of
Manila in declaring himself without jurisdiction nor authority to continue the proceedings which
provoked the present controversy, being a judicial process of a Japanese sponsored government, is
absolutely correct, under the legal doctrines established by the United States and the Philippine
Government, and consistently, invariably, and without exception, followed by the same.

If we accept, for the sake of argument, the false hypothesis that the Commonwealth tribunals have
jurisdiction to continue the judicial processes left pending by the courts of the governments
established under the Japanese regime, the courts which disappeared and, automatically, ceased to
function with the ouster of the enemy, the position of the Judge Dizon, in declining to continue the
case, is still unassailable, because, for all legal purposes, it is the same as if the judicial processes in
said case were not taken at all, as inevitable result of the sweeping and absolute annulment
declared by the General MacArthur in the October Proclamation.

In said proclamation it is declared in unmistakable and definite terms that "ALL PROCESSES" of the
Japanese sponsored governments "ARE NULL AND VOID AND WITHOUT LEGAL EFFECT", and
they shall remain so until the Commonwealth, through its legislative power, decides otherwise in a
proper validating act.

The fact that the Japanese invaders, under international law, were in duty bound to establish courts
of justice during the occupation, although they made them completely powerless to safeguard the
constitutional rights of the citizens, and mere figureheads as regards the fundamental liberties of the
helpless men, women and children of our people, so much so that said courts could not offer even
the semblance of protection when the life, the liberty, the honor and dignity of our individual citizens
were wantonly trampled by any Japanese, military or civilian, does not change the situation. "ALL
PROCESSES" of said court are declared "NULL AND VOID AND WITHOUT LEGAL EFFECT" in the
October proclamation, and we do not have any other alternative but to accept the law, as said
proclamation has the full force of a law.

The fact that in the past, the legitimate governments, once restored in their own territory,
condescended in many cases to recognize and to give effect to judgments rendered by courts under
the governments set up by an invading military occupant or by a rebel army, does not elevate such
condescension to the category of a principle, when Wheaton declares that no international wrong is
done if the acts of the invader are reversed.

Many irrelevant authorities were cited to us as to the duties imposed by the international law on
military occupants, but no authority has been cited to the effect that the representative of the
restored legitimate government is a bound to recognize and accept as valid the acts and processes
of said occupants. On the contrary, Wheaton says that if the occupant's acts are reversed "no
international wrong would be committed."

Following the authority of Wheaton, undisputed by the majority, General MacArthur thought, as the
wisest course, of declaring "NULL AND VOID AND WITHOUT EFFECT," by official proclamation,
"ALL PROCESSES" under the Japanese regime, that is legislative, executive and judicial processes,
which fall under the absolute adjective "ALL".

That declaration is a law. It is a law that everybody bound to accept and respect, as all laws must be
accepted and respected. It is a law that the tribunals are duty bound to give effect and apply.
We are not unmindful of the adverse consequences to some individuals of the annullment of all the
judicial processes under the Japanese regime, as provided in the October Proclamation, but the
tribunals are not guardians of the legislative authorities, either an army commander in chief, during
war, or a normal legislature, in peace time. The tribunals are not called upon to guide the legislative
authorities to the wisdom of the laws to be enacted. That is the legislative responsibility. Our duty
and our responsibility is to see to it that the law, once enacted, be applied and complied with.

No matter the consequences, no matter who might be adversely affected, a judge must have the firm
resolve and the courage to do his duty, as, in the present case, Judge Dizon did, without fear nor
favor. We cannot see any reason why we should not uphold him in his stand in upholding the law.

It is our official duty, national and international duty. Yes. Because this Supreme Court is sitting, not
only as a national court, but as an international court, as is correctly stated in the concurring opinion
of Justice De Joya, and we should feel the full weight of the corresponding responsibility, as the
American courts with admiralty jurisdiction and the Prize Courts of England did feel. In fact, it is in
the judiciary where, more than in any point of view is more pressing, more imperative, more
unavoidable. Justice has no country. It is of all countries. The horizon of justice cannot be limited by
the scene where our tribunals are functioning and moving. That horizon is boundless. That is why in
our constitution the bill of rights has been written not for Filipinos, but for all persons. They are rights
that belong to men, not as Filipinos, Americans, Russians, Chinese or Malayan, but as a members
of humanity. The international character of our duty to administer justice has become more specific
by the membership of our country in the United Nations. And let us not forget, as an elemental thing,
that our primary duty is to uphold and apply the law, as it is; that we must not replace the words of
the law with what we might be inclined to surmise; that what is clearly and definitely provided should
not be substituted with conjectures and suppositions; that we should not try to deduce a contrary
intention to that which is unequivocally stated in the law; that we should not hold valid what is
conclusively declared null and void.

The October Proclamation declared "ALL PROCESSES" under the Japanese regime "AND VOID
WITHOUT EFFECT", so they must stand. There is no possible way of evasion. "ALL PROCESSES",
in view of the meaning of the absolute adjective "ALL", include "JUDICIAL PROCESSES". Allegatio
contra factum non est admittenda.

CONCLUSION

For all the foregoing reasons we conclude:

1. That General MacArthur had full legal authority to issue the October Proclamation, and that no
principle of the international law is violated by said proclamation, no international wrong being
committed by the reversal by the legitimate government of the acts of the military invader.

2. That said proclamation was issued in full conformity with the official policies to which the United
States and Philippine Governments were committed, and the annulment of all the facts of the
governments under the Japanese regime, legislative, executive, and judicial, is legal, and justified by
the wrongs committed by the Japanese.

3. That when General MacArthur proclaimed and declared in the October Proclamation "That all
laws, regulations and processes" of the Japanese sponsored governments, during enemy
occupation, "are null and void and without effect", he meant exactly what he said.
4. That where General MacArthur said "all processes" we must read and understand precisely and
exactly "all processes", and not "some processes". "All" and "some" have incompatible meanings
and are not interchangeable.

5. That the word "processes" includes judicial procedures, proceedings, processes, and cases.
Therefore, "all processes" must include "all judicial processes.".

6. That we have no right to attribute General MacArthur an intention different from what he has
plainly, clearly, unmistakably expressed in unambiguous words with familiar meaning generally
understood by the common man.

7. That the judicial proceedings here in question are included among those adversely affected by the
October Proclamation.

8. That the Commonwealth tribunals have no jurisdiction to take cognizance of nor to continue the
judicial proceedings under the Japanese regime.

9. That to exercise said jurisdiction an enabling act of the Congress is necessary.

10. That respondent Judge Dizon did not commit the error complained of in the petition, and that the
petition has no merits at all.

We refuse to follow the course of action taken by the majority in the present case. It is a course
based on a mistaken conception of the principles of international law and their interpretation and
application, and on a pinchbeck. It is a course based on misconstruction or misunderstanding of the
October Proclamation, in utter disregard of the most elemental principles of legal here meneutics. It
is a course that leads to nowhere, except to the brink of disaster, because it is following the
dangerous path of ignoring or disobeying the law.

Let us not allow ourselves to be deceived. The issue confronting us is not of passing importance. It
is an issue of awesome magnitude and transcendency. It goes to and reaches the very bottom. It is
simple. Lacking in complexities. But it may shake the very foundation of society, the cornerstone of
the state, the primary pillar of the nation. It may dry the very foundation of social life, the source of
vitalizing sap that nurtures the body politic. The issue is between the validity of one or more
Japanese regime processes and the sanctity of the law.

That is the question, reduced to its ultimate terms. it is a simple dilemma that is facing us. It is the
alpha and the omega of the whole issue. Either the processes, or the law. We have to select
between two, which to uphold. It is a dilemma that does not admit of middle terms, or of middle ways
where we can loiter with happy unconcern . We are in the cross road: which way shall we follow?
The processes and the law are placed in the opposite ends of the balance. Shall we inclined the
balance of justice to uphold the processes and defeat law, or vice versa?

We feel jittery because some judicial processes might be rescinded or annulled, but we do not
tremble with sincere alarm at the thought of putting the law under the axe, of sentencing law to be
executed by the guillotine. We feel uneasy, fancying chaos and paralyzation of social life, because
some litigants in cases during the Japanese regime will be affected in their private interests, with the
annulment of some judicial processes, but we adopt an attitude of complete nonchalance in throwing
law overboard. This baffling attitude is a judicial puzzle that nobody will understand. So it is better
that we should shift to a more understandable way, that which is conformable to the standard that
the world expects in judicial action.
No amount of arguments and lucubration's, no amount of speculative gymnastics, no amount of
juggling of immaterial principles of international law, no amount of presumptions and suppositions,
surmises and conjectures, no amount of dexterity in juridical exegesis can divert our attention from
the real, simple, looming, hypostasis of the issue before us: Law. It is Law with all its majestic
grandeur which we are defying and intending to overthrow from the sacred pedestal where the ages
had placed her as a goddess, to be enshrined, obeyed, and venerated by men, forever. Let us not
dare to lay our profaning hands on her vestal virginity, lest the oracle should fling at us the thunder of
his prophetic anathema.

We cannot therefore vote except for the denial of the petition.

HILADO, J., dissenting:

I dissent from the opinion of the majority and, pursuant to the Constitution, proceed to state the
reason for my dissent.

The proceeding involved in the case at bar were commenced by a complaint filed by the instant
petitioner, as plaintiff, on November 18, 1944, in civil case No. 3012 of the so-called Court of First
Instance of Manila, the complaint bearing this heading and title: "The Republic of the Philippines —
In the Court of First Instance of Manila" (Annex X of Exhibit A of petition for mandamus). The farthest
that said proceedings had gone before the record was burned or destroyed during the battle for
Manila, was the filing by counsel for plaintiff therein of their opposition to a motion for dismissal filed
by opposing counsel.

It is, therefore, plain that the case had not been heard on the merits when the record was burned or
destroyed.

The respondent judge, in his order dated June 6, 1945, disposing of the petition dated May 25, 1945
filed by petitioner, as a plaintiff in said case, and of the petition filed by respondent Eusebio Valdez
Tan Keh, as defendant therein, on May 31, 19045, held: " first, that by virtue of the proclamation of
General MacArthur quoted above, all laws, regulations and processes of any other government in
the Philippines than that of the Commonwealth became null and void and without legal effect in
Manila on February 3, 1945 or, at the lates, on February 27 of the same year; second that the
proceedings and processes had in the present case having been before a court of the Republic of
the Philippines and in accordance with the laws and regulations of said Republic, the same are now
void and without legal effect; third, that this Court as one of the different courts of general jurisdiction
of the Commonwealth of the Philippines, has no authority to take cognizance of and continue said
proceedings to final judgement, until and unless the Government of the Commonwealth of the
Philippines, in the manner and form provided by law, shall have provided for the transfer of the
jurisdiction of the courts of the now defunct Republic of the Philippines, and the causes commenced
and left pending therein, to the courts created and organized by virtue of the provisions of Act No.
4007, as revived by Executive Order No. 36, or for the validation of all proceedings had in said
courts."

Petitioner prays that this Court declare that the respondent judge should not have ordered the
suspension of the proceedings in civil case No. 3012 and should continue and dispose of all the
incidents in said case till its complete termination. In my opinion, the petition should denied.

In stating the reasons for this dissent, we may divide the arguments under the following propositions:
1. The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148);

2. (a) The government styled as, first, the "Philippine Executive Commission "and later as the
Republic of the Philippines", established here by the Commander in Chief of the Imperial Japanese
Forces or by his order was not a de-facto government — the so-called Court of First Instance of
Manila was not a de facto court, and the judge who presided it was not a de facto judge; (b) the rules
of International Law regarding the establishment of a de factoGovernment in territory belonging to a
belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments
thus established here by Japan;

3. The courts of those governments were entirely different from our Commonwealth courts before
and after the Japanese occupation;

4. The question boils down to whether the Commonwealth Government, as now restored, is to be
bound by the acts of either or both of those Japanese-sponsored governments;

5. Even consideration of policy of practical convenience militate against petitioner's contention.

The proceedings in said civil case No. 3012 are null and void under General of the Army
MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148).

In this proclamation, after reciting certain now historic facts, among which was that the so-called
government styled as the "Republic of the Philippines" was established on October 14, 1943 "under
enemy duress, . . . based upon neither the free expression of the people's will nor the sanction of the
Government of the United States," the great Commander-in-Chief proclaimed and declared:

xxx xxx xxx

3. That all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control; and

xxx xxx xxx

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the
Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts
of their duly constituted government whose seat is now firmly re-established on Philippine
soil.

The evident meaning and effect of the 3rd paragraph above quoted is, I think, that as the different
areas of the Philippines were progressively liberated, the declaration of nullity therein contained shall
attach to the laws, regulations and processes thus condemned in so far as said areas were
concerned. Mark that the proclamation did not provide that such laws, regulations and processes
shall be or are annulled, but that they are null and void. Annulment implies some degree of the
effectiveness in the act annulled previous to the annulment, but a declaration of nullity denotes that
the act is null and void ab initio — the nullity precedes the declaration. The proclamation speaks in
the present tense, not in the future. If so, the fact that the declaration of nullity as to the condemned
laws, regulations, and processes in areas not yet free from enemy occupation and control upon the
date of the proclamation, would attach thereto at a later date, is no argument for giving them validity
or effectiveness in the interregnum. By the very terms of the proclamation itself, that nullity had to
date back from the inception of such laws, regulations and processes; and to dispel any shadow of
doubt which may still remain, we need only consider the concluding paragraph of the proclamation
wherein the Commander in Chief of the army liberation solemnly enjoined upon all loyal citizens of
the Philippines full respect for and obedience to the Constitution of the Commonwealth of the
Philippines and the laws, regulations and other acts of their duly constituted government. This is all-
inclusive — it comprises not only the loyal citizens in the liberated areas but also those in areas still
under enemy occupation and control. It will be noticed that the complaint in said civil case No. 3012
was filed twenty-six days after the above-quoted proclamations of General of the Army MacArthur. If
the parties to said case were to consider the proceedings therein up to the date of the liberation of
Manila valid and binding, they would hardly be complying with the severe injunction to render full
respect for and obedience to our Constitution and the laws, regulations and other acts of our duly
constituted government from October 23, 1944, onwards. Indeed, to my mind, in choosing between
these two courses of action, they would be dangerously standing on the dividing line between loyalty
and disloyalty to this country and its government.

The proceeding in question, having been had before the liberation of Manila, were unquestionably
"processes" of the Japanese-sponsored government in the Philippines within the meaning of the
aforesaid proclamation of General of the Army MacArthur and, consequently, fall within the
condemnation of the proclamation. Being processes of a branch of a government which had been
established in the hostility to the Commonwealth Government, as well as the United States
Government, they could not very well be considered by the parties to be valid and binding, at least
after October 23, 1944, without said parties incurring in disobedience and contempt of the
proclamation which enjoins them to render full respect for the obedience to our Constitution and the
laws, regulations and other acts of our duly constituted government. Nine days after the inauguration
of the so-called "Republic of the Philippines," President Franklin Delano Roosevelt of the United
States declared in one of his most memorable pronouncements about the activities of the enemy in
the Philippines, as follows:

One of the fourtheenth of this month, a puppet government was set up in the Philippine
Island with Jose P. Laurel, formerly a justice of the Philippine Supreme Court, as "president."
Jorge Vargas, formerly as a member of the Commonwealth Cabinet, and Benigno Aquino,
also formerly a member of that cabinet, were closely associated with Laurel in this
movement. The first act of the new puppet regime was to sign a military alliance with Japan.
The second act was a hyphocritical appeal for American sympathy which was made in fraud
and deceit, and was designed to confuse and mislead the Filipino people.

I wish to make it clear that neither the former collaborationist "Philippine Executive
Commission" nor the present "Philippine Republic " has the recognition or sympathy of the
Government of the United States. . . .

Our symphaty goes out to those who remain loyal to the United States and the
Commonwealth — that great majority of the Filipino people who have not been deceived by
the promises of the enemy.

October 23, 1943.

FRANKLIN DELANO ROOSEVELT

President of the United States

(Form U.S. Naval War College International Law Documents, 1943, pp. 93, 94.).
It is a fact of contemporary history that while President Manuel L. Quezon of the Philippines was in
Washington, D.C., with his exiled government, he also repeatedly condemned both the "Philippine
Executive Commission" and the "Philippine Republic," as they had been established by or under
orders of the Commander in Chief of the Imperial Japanese Forces. With these two heads of the
Governments of the United States and the Commonwealth of the Philippines condemning the
"puppet regime" from its very inception, it is beyond my comprehension to see how the proceedings
in question could be considered valid and binding without adopting an attitude incompatible with
theirs. As President Roosevelt said in his above quoted message, "Our symphaty goes out to those
remain loyal to the United States and the Commonwealth — that great majority of the Filipino people
who have not been deceived by the promises of the enemy.

The most that I can concede is that while the Japanese Army of occupation was in control in the
Islands and their paramount military strength gave those of our people who were within their reach
no other alternative, these had to obey their orders and decrees, but the only reason for such
obedience would be that paramount military strength and not any intrinsic legal validity in the
enemy's orders and decrees. And once that paramount military strength disappeared, the reason for
the obedience vanished, and obedience should likewise cease.

As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy (96 U.S.,
176; 24 Law. ed., 719), "In the face of an overwhelming force, obedience in such matters may often
be a necessity and, in the interest of order, a duty. No concession is thus made to the rightfulness of
the authority exercised." (Emphasis ours.) The court there refers to its own former decision in
Thorington vs. Smith, and makes it clear that the doctrine in the Thorington case, so far as the
effects of the acts of the provisional government maintained by the British in Casetine, from
September, 1814 to the Treaty of Peace in 1815, and the consideration of Tampico as United States
territory, were concerned, was limited to the period during which the British, in the first case, retained
possession of Castine, and the United States, in the second, retained possession of Tampico. In
referring to the Confederate Government during the Civil War, as mentioned in the Thorington case,
the court again says in effect that the actual supremacy of the Confederate Government over a
portion of the territory of the Union was the only reason for holding that its inhabitants could not but
obey its authority. But the court was careful to limit this to the time when that actual supremacy
existed, when it said: . . . individual resistance to its authority then would have been futile and,
therefore, unjustifiable." (Emphasis ours.)

Because of its pertinence, we beg leave to quote the following paragraph from that leading decision:

There is nothing in the language used in Thorington vs. Smith (supra), which conflicts with
these views. In that case, the Confederate Government is characterized as one of
paramount force, and classed among the governments of which the one maintained by great
Britain in Castine, from September 1814, to the Treaty of Peace in 1815, and the one
maintained by the United States in Tampico, during our War with Mexico, are examples.
Whilst the British retained possession of Castine, the inhabitants were held to be subject to
such laws as the British Government chose to recognize and impose. Whilst the United
States retained possession of Tampico, it was held that it must regarded and respected as
their territory. The Confederate Government, the court observed, differed from these
temporary governments in the circumstance that its authority did not justifying acts of hostility
to the United States, "Made obedience to its authority in civil and local matters not only a
necessity, but a duty." All that was meant by this language was, that as the actual
supremancy of the Confederate Government existed over certain territory, individual
resistance to its authority then would have been futile and, therefore, unjustifiable. In the face
of an overwhelming force, obedience in such matters may often be a necessity and, in the
interest of order, a duty. No concession is thus made to the rightfulness of the authority
exercised. (Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.)
The majority opinion, in considering valid the proceedings in question, invokes the rule that when a
belligerent army occupies a territory belonging to the enemy, the former through its Commander in
Chief, has the power to establish thereon what the decisions and treaties have variously
denominated provisional or military government, and the majority holds that the Japanese-
sponsored government in the Philippines was such a government. Without prejudice to later
discussing the effects which the renunciation of war as an instrument of national policy contained in
our Commonwealth Constitution, as well as in the Briand-Kellog Pact, must have produced in this
rule in so far as the Philippines is concerned, let us set forth some considerations apropos of this
conclusion of the majority. If the power to establish here such a provisional government is
recognized in the Commander in Chief of the invasion army, why should we not recognize at least
an equal power in the Commander in Chief of the liberation army to overthrow that government will
all of its acts, at least of those of an executory nature upon the time of liberation? Considering the
theory maintained by the majority, it would seem that they would recognize in the Japanese
Commander in Chief the power to overthrow the Commonwealth Government, and all of its acts and
institutions if he had choosen to. Why should at least an equal power be denied the Commander in
Chief of the United States Army to overthrow the substitute government thus erected by the enemy
with all of its acts and institutions which are still not beyond retrieve? Hereafter we shall have
occasion to discuss the aspects of this question from the point of view of policy or the practical
convenience of the inhabitants. If the Japanese Commander in Chief represented sovereignty of
Japan, the American Commander in Chief represented the sovereignty of the United States, as well
as the Government of the Commonwealth. If Japan had won this war, her paramount military
supremacy would have continued to be exerted upon the Filipino people, and out of sheer physical
compulsion this country would have had to bow to the continuance of the puppet regime that she
had set up here for an indefinite time. In such a case, we admit that, not because the acts of that
government would then have intrinsically been legal and valid, but simply because of the paramount
military force to which our people would then have continued to be subjected, they would have had
to recognize as binding and obligatory the acts of the different departments of that government. But
fortunately for the Filipinos and for the entire civilized world, Japan was defeated. And I now ask:
Now that Japan has been defeated, why should the Filipinos be still bound to respect or recognize
validity in the acts of the Japanese-sponsored government which has been so severely condemned
by both the heads of the United States and our Commonwealth Government throughout the duration
of the war? If we were to draw a parallel between that government and that which was established
by the Confederate States during the American Civil War, we will find that both met with ultimate
failure. And, in my opinion, the conclusion to be drawn should be the same in both cases.

As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring to the
Confederate Government, its failure carried with it the dissipation of its pretentions and the breaking
down in pieces of the whole fabric of its government. The Court said among other things:

The immense power exercised by the government of the Confederate States for nearly four
years, the territory over which it extended, the vast resources it wielded, and the millions who
acknowledged its authority, present an imposing spectacle well fitted to mislead the mind in
considering the legal character of that organization. It claimed to represent an independent
nation and to posses sovereign powers; as such to displace to jurisdiction and authority of
the United States from nearly half of their territory and, instead of their laws, to substitute and
enforce those of its own enactment. Its pretentions being resisted, they were submitted to the
arbitrament of war. In that contest the Confederacy failed; and in its failure its pretentions
were dissipated, its armies scattered, and the whole fabric of its government broken in
pieces. (24 Law, ed., 719; emphasis ours.)

By analogy, if the Japanese invasion and occupation of the Philippines had been lawful — which,
however, is not the case — and if Japan had succeeded in permanently maintaining the government
that she established in the Philippines, which would have been the case had victory been hers, there
would be more reason for holding the acts of that government valid, but because Japan has lost the
war and, therefore, failed in giving permanence to that government, the contrary conclusion should
legitimately follow.

The validity of legislation exercised by either contestant "depends not upon the existence of
hostilities but upon the ultimate success of the party which it is adopted" (emphasis ours). And,
referring to the overthrow of the of the Confederacy, the Court, said, "when its military forces were
overthrown, it utterly perished, and with it all its enactments" (emphasis ours)

The majority cite on page 9-10 of their opinion a passage from the same case of
Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion says that in this
passage the Court was "discussing the validity of the acts of the Confederate States." In the first
place, an examination of the decision will reveal that the controversy dealt with an act of
the Confederate Government, not of the Confederate States individually; and in the second place,
the quoted passage refers to something which was not in issue in the case, namely, the acts of the
individual States composing the Confederacy. But even this passage clearly places the case at bar
apart from the Court's pronouncement therein. The quoted passage commences by stating that "The
same general form of government the same general laws for the administration of justice and the
protection of private rights, which has existed in the States prior to the rebellion, remanded during
(its) continuance and afterwards. "In the case at bar, the same general form of the Commonwealth
Government did not continue under the Japanese, for the simple reason that one of the first acts of
the invaders was to overthrow the Commonwealth Constitution and, therefore, the constitutional
government which existed thereunder, as an effect of the following acts and decrees of the
Commander in Chief of the Imperial Japanese Forces:

1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the Imperial Japanese
Forces to the Chairman of the Philippine Executive Commission directed that, in the exercise of
legislative, executive and judicial powers in the Philippines, the "activities" of the "administrative
organs and judicial courts in the Philippines shall be based upon the existing status, order,
ordinances and the Commonwealth Constitution (1 Official Journal of the Japanese Military
Administration, page 34). Under the frame of government existing in this Commonwealth upon the
date of the Japanese invasion, the Constitution was the very fountain-head of the validity and effects
of all the "status, orders, and ordinances" mentioned by the Japanese Commander in Chief, and in
overthrowing the Constitution he, in effect, overthrew all of them.

2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et seq., Official
Gazette, edited at the Office of the Executive Commission) gave the "Detailed Instruction Based on
Guiding Principle of the Administration," and among other things required "The entire personnel shall
be required to pledge their loyalty to the Imperial Japanese Forces. . . ." (This, of course, was
repugnant to the frame of government existing here under the Commonwealth Constitution upon the
date of invasion.)

3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provided in

paragraph 3 that "The Authorities and the People of the Commonwealth should sever their relations
with the U.S. o . . ." (This is, likewise, repugnant to the Commonwealth Constitution and the to the
Government of that Commonwealth Constitution and to the Government of that Commonwealth
which was expressly made subject to the supreme sovereignty of the United States until complete
independence is granted, not by the mere will of the United States, but by virtue of an agreement
between that Government and ours, under the Tydings-McDuffie Act.)

The individual States of the Confederate and their governments existed prior to the Civil War and
had received the sanction and recognition of the Union Government, for which the Federal Supreme
Court was speaking in the Williams-Bruffy case; while the Japanese-sponsored governments of the
"Philippine Executive Commission" and the Republic of the Philippines" neither existed here before
the war nor had received the recognition or sanction of either the United States or the
Commonwealth Government — nay, they had received the most vigorous condemnation of both.

The Court further says in Williams vs. Bruffy (supra):

No case has been cited in argument, and we think unsuccesfully attempting to establish a
separate revolutionary government have been sustained as a matter of legal right. As justly
observed by the late Chief Justice in the case of Shortridge vs. Macon, I Abb. U.S., 58,
decided at the circuit, and, in all material respects like the one at bar, "Those who engage in
rebellion must consider the consequences. If they succeed, rebellion becomes revolution,
and the new government will justify is founders. If they fail, all their acts hostile to the rightful
government are violations of law, and originate no rights which can be recognized by the
courts of the nation whose authority and existence have been alike assailed. S.C., Chase,
Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.) (Emphasis ours.)

I am of opinion that the principles thus enunciated for the case of an unsuccessful rebellion should
be applied with greater force to the case of a belligerent who loss the war. And since the founding of
the Japanese-sponsored government in the Philippines was designed to supplant and did actually
supplant the rightful government and since all its acts could not but a hostile to the latter (however
blameless the officials who acted under enemy duress might be), and since Japan failed, all said
acts, particularly those of the Japanese-sponsored court in said civil case No. 3012, "are violations
of law, and originate no rights which can be recognized by the courts of the nation whose authority
and existence have been alike assailed", quoting the language of the court in Shortridge vs. Macon,
cited by Mr. Justice Field in Williams vs. Bruffy, supra (24 Law. ed., 718).

II

(a) The government styled as, first, the "Philippine Executive Commission" and later as the
Republic of the Philippines", established here by the Commander in Chief of the Imperial
Japanese Forces or by the his order was not a de facto government--the so-called Court of
First Instance of Manila was not a de facto court and the who presided it was not a de
facto judge;

(b) The rules of International Law regarding the establishment of a de facto government in
territory belonging to a belligerent but occupied or controlled by an opposing belligerent are
inapplicable to the governments thus established here by Japan.

Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein cited, the short-lived
provisional government thus established by the Japanese in the Philippines should be classified, at
best, as a government of paramount force. But this is not all. The Constitution of this Commonwealth
which has been expressly approved by the United States Government, in Article II, section 3, under
the heading "Declaration of Principles", renounces war as an instrument of national policy. This
renunciation of war as an instruments of national policy follows an equal renunciation in the Briand-
Kellog Pact. The rules of International Law , cited in support of the power or right of a belligerent
army of occupation to set up a provisional government on occupied enemy territory, were evolved
prior to the first World War, but the horrors and devastations of that war convinced, at least the
governments of the United States and France, that they should thereafter renounce war as an
instrument of national policy, and they consequently subscribed the Briand-Kellog Pact. Those
horrors and devastations were increased a hundred fold, if not more, in this second World War, but
even before this war occurred, our own people, through our Constitutional delegates, who framed
the Commonwealth Constitution also adopted the same doctrine, and embodied an express
renunciation of war as an instrument of national policy in the instrument that they drafted. It is true
that in section 3, Article II, above-cited, our Constitution adopts the generally accepted principles of
International Law as a part of the law of the Nation. But, of course, this adoption is exclusive of those
principles of International Law which might involve recognition of war as an instrument of national
policy. It is plain that on the side of the Allies, the present war is purely defensive. When Japan
started said war, treacherously and without previous declaration, and attacked Pearl Harbor and the
Philippines on those two fateful days of December 7 and 8, 1941, she employed war as an
instrument of the national policy. Under the Briand-Kellog Pact and our Commonwealth Constitution,
the United States and the Commonwealth Government could not possibly have recognized in Japan
any right, as against them, to employ that war as an instrument of her national policy, and,
consequently, they could not have recognized in Japan power to set up in the Philippines the puppet
government that she later set up, because such power would be a mere incident or consequence of
the war itself. The authorities agree that such a power, under the cited rules, is said to a right derived
from war. (67 C.J., p. 421, sec. 171.) There can be no question that the United States and the
Commonwealth Governments were free to refuse to be bound by those rules when they made their
respective renunciations above referred to. Indeed, all the United Nations have exercised this free
right in their Charter recently signed at San Francisco.

As necessary consequence of this, those rules of International Law were no longer applicable to the
Philippines and to the United States at the time of the Japanese invasion as a corollary, it follows
that we have no legal foundation on which to base the proposition that the acts of that Japanese-
sponsored government in the Philippines were valid and binding. Moreover, I am of opinion, that
although at the time of the Japanese invasion and up to the present, the United States retains over
the Philippines, a certain measure of sovereignty, it is only for certain specified purposes
enumerated in the Tydings-McDufie Act of the Commonwealth Constitution. (Ordinance appended to
the Constitution.) And our territory was at the time of the Japanese invasion not a territory of the
United States, within the meaning of the laws of war governing war-like operations on enemy
territory. Our territory is significantly called "The National Territory" in Article I of our Constitution and
this bears the stamps of express approval of the United States Government. The Philippines has
been recognized and admitted as a member of the United Nations. We, therefore, had our own
national and territorial identity previous to that invasion. Our nation was not at war with the Filipinos.
And line with this, the Japanese army, in time, released Filipino war prisoners captured in Bataan. Lt.
Gen. Maeda, Chief of Staff, Imperial Japanese Forces, in his speech of January 2, 1942, said:

. . . we had not the slighest intensions to make your people our enemy; rather we considered
them as our friends who will join us has hand-in-hand in the establishment of an orderly
Greater East Asia. . . ., (Official Gazette, edited at the Office of the Executive Commission,
Vol. I, p. 55.)

If the Philippines was a neutral territory when invaded by the Japanese, the following principles from
Lawrence, International Law (7th ed.), p. 603, are pertinent:

The Duties of Belligerent States Towards Neutral States. — . . . To refrain from carrying on
hostilities within neutral territory. — We have already seen that, though this obligation was
recognized in theory during the infancy of International law, it was often very imperfectly
observed in practice. But in modern times it has been strickly enforced, and any State which
knowingly ordered warlike operations to be carried on in neutral territory . . . would bring
down upon itself the reprobation of civilized mankind. Hostilities may be carried on in the
territory of either belligerent, on the high seas, and in territory belonging to no one. Neutral
land and neutral territorial waters are sacred. No acts of warfare may lawfully take place
within them. . . . (Emphasis ours.)
In all the cases and authorities supporting the power or right to set up a provisional government, the
belligerent had the right to invade or occupy the territory in the first instance. Such was not the case
with the Philippines. President Roosevelt, in his message to the Filipino people, soon after the
landing of American Forces in Leyte, on October 20, 1944, characterized Japan's invasion and
occupation of the Philippines as "the barbarous, unprovoked and treacherous attack upon the
Philippines," and he announced the American people's "firm determination to punish the guilty." (41
Off. Gaz., 149.) (Emphasis ours.) The illustrious leader of the United Nations could not have in more
unmistakable terms the utter illegality of that invasion and occupation. If the establishment of a
provinsional government in occupied territory by a belligerent is "a mere application or extension of
the force by which the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the illegality
of the invasion, would necessarily permeate the government, which was its mere application or
extention.

The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and
treacherous attack," the meager and almost untrained forces of the Philippine Army had been
inducted into the American Army, did not change the neutral status of the Philippines. That military
measure had been adopted for purely defensive purposes. Nothing could be farther from the minds
of the government and military leaders of the United States and the Philippines in adopting it than to
embark upon any aggressive or warlike enterprise against any other nation. It is an old and honored
rule dating as far back as the 18th century that even solemn promises of assistance made before the
war by a neutral to a nation which later becomes a belligerent, would not change the status of the
neutral even if such promises were carried out, so long as they were made for purely defensive
purposes. In the words of Vattel "when a sovereign furnishes the succor due in virtue of a former
defensive alliance, he does not associate himself in the war. Therefore he may fulfill his
engagements and yet preserve an exact neutrality." (Lawrence, Principles of International Law [7th
ed.], pp. 585, 586.)

If the Filipinos had, from contemptible cowardice and fear, allowed their shores to be invaded, and
their territory occupied by the Japanese without resistance, such invasion occupation would
undoubtedly have been considered in violation of International Law. Should the Filipinos be
punished for having had the patriotism, bravery, and heroism to fight in defense of the sacredness of
their land, the sanctity of their homes, and the honor and dignity of their government by giving
validity, in whatever limited measure, to the lawless acts of the ruthless enemy who thus overran
their country, and robbed them of the tranquility and happiness of their daily lives? And yet, to my
mind, to give any measure of validity or binding effect to the proceedings of the Japanese-sponsored
Court of First Instance of Manila, involved herein, would be to give that much validity or effect to the
acts of those same invaders. To equalize the consequences of a lawful and a wrongful invasion of
occupation, would be to equalize right and wrong, uphold the creed that might makes right, and
adopt "the law of the jungle."

If said Japanese-sponsored government was not a de facto government, it would seem clearly to
follow that its "Court of First Instance of Manila" was not a de facto court. But it should additionally be
stated that for it be a de facto court, its judge had to be a de facto judge, which he could not be, as
presently demonstrated.

As said by President Osmeña, in replying to the speech of General of the Army MacArthur when the
latter turned over to him the full powers and responsibilities of the Commonwealth Government, on
February 27, 1945:

xxx xxx xxx

 The time has come when the world should know that when our forces surrendered in Bataan
and Corregidor, resistance to the enemy was taken up by the people itself — resistance
which was inarticulate and disorganized in its inception but which grew from the day to day
and from island until it broke out into an open warfare against the enemy.

The fight against the enemy was truly a people's war because it counted with the
wholehearted support of the masses. From the humble peasant to the barrio school teacher,
from the volunteer guard to the women's auxilliary service units, from the loyal local official to
the barrio folk — each and every one of those contributed his share in the great crusade for
liberation.

The guerrillas knew that without the support of the civilian population, they could not survive.
Whole town and villages dared enemy reprisal to oppose the hated invader openly or give
assistance to the underground movement. . . . (41 Off. Gaz., 88, 89.)

Under these facts, taken together with the General of the Army MacArthur's accurate statement that
the "Republic of the Philippines" had been established under enemy duress, it must be presumed —
to say the least — that the judge who presided over the proceedings in question during the
Japanese occupation, firstly, accepted his appointment under duress; and secondly, acted by virtue
of that appointment under the same duress. In such circumstances he could not have acted in
the bona fide belief that the new "courts" created by or under the orders of the Japanese Military
Commander in chief had been legally created--among them the "Court of first Instance of Manila," —
that the Chairman of the "Philippine Executive Commission" or the President of the "Republic of the
Philippines", whoever appointed him, and conferred upon him a valid title to his office and a
legitimate jurisdiction to act as such judge. Good faith is essential for the existence of a de
facto judge (Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of enemy duress would
necessarily imply that but for the duress exerted upon him by the enemy he would have refused to
accept the appointment and to act thereunder. And why? Because he must be presumed to know
that the office to which he was thus appointed had been created by the enemy in open defiance of
the Commonwealth Constitution and the laws and regulation promulgated by our Commonwealth
Government, and that his acceptance of said office and his acting therein, if willfully done, would
have been no less than an open hostility to the very sovereignty of the United Sates and to the
Commonwealth Government, and a renunciation of his allegiance to both. There is no middle ground
here. Either the judge acted purely under duress, in which case his acts would be null and void; or
maliciously in defiance of said governments, in which case his acts would be null and void for more
serious reasons.

The courts created here by the Japanese government had to look for the source of their supposed
authority to the orders of the Japanese Military Commander in chief and the so-called Constitution of
the "Republic of the Philippines," which had been adopted in a manner which would shock the
conscience of democratic peoples, and which was designed to supplant the Constitution which had
been duly adopted by the Filipino people in a Constitutional Convention of their duly elected
Constitutional Delegates. And it was decreed that the Commander in chief of the Imperial Japanese
Forces "shall exercise jurisdiction over judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese
Military Administration, cited on pp. 2, 3, of the order of the respondent judge complained of and
marked Exhibit H of the petition for mandamus.) How can our present courts legitimately recognize
any efficacy in the proceedings of such an exotic judicial system, wherein the Commander in Chief
of the Imperial Japanese Forces possessed the highest judicial jurisdiction?

III
 The courts of those governments were entirely different from our Commonwealth courts
before and after the Japanese occupation.

Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very first
paragraph, states the prime concern of the government "to re-establish the courts as fast as
provinces are liberated from the Japanese occupation." If the courts under the Japanese-sponsored
government of the "Republic of the Philippines" were the same Commonwealth courts that existed
here under the Constitution at the time of the Japanese invasion, President Osmeña would not be
speaking of re-establishing those courts in his aforesaid Executive Order. For soothe, how could
those courts under the "Republic of the Philippines" be the courts of the Commonwealth of the
Philippines when they were not functioning under the Constitution of the Commonwealth and the
laws enacted in pursuance of said Constitution? The jurisdiction of the Commonwealth courts was
defined and conferred under the Commonwealth Constitution and the pertinent legislation enacted
thereunder, that of the Japanese-sponsored courts was defined and conferred by the orders and
decrees of the Japanese Commander in Chief, and, perhaps, the decrees of the "Philippine
Executive Commission" and the laws of the so-called Legislature under the Republic, which was not
composed of the elected representatives of the people. The Justices and Judges of the
Commonwealth courts had to be appointed by the President of the Commonwealth with confirmation
by the Commission on Appointments, pursuant to the Commonwealth Constitution. The Chief
Justice of the Supreme Court, under the "Philippine Executive Commission" was appointed by the
Commander in Chief of the Imperial Japanese Forces, and the Associate Justices of the Supreme
Court, the Presiding Justice and Associate Justices of the Court of Appeals, the Judges of first
Instance and of all inferior courts were appointed by the Chairman of the Executive Commission, at
first, and later, by the President of the Republic, of course, without confirmation by the Commission
on Appointments under the Commonwealth Constitution. The Chief Justice and Associate Justices
of the Supreme Court, the President and Associate Justices of the Court of Appeals, and the Judges
of First Instance and of all inferior courts in the Commonwealth judicial system, had to swear to
support and defend the Commonwealth Constitution, while this was impossible under the Japanese-
sponsored government. In the Commonwealth judicial system, if a Justice or Judge should die or
incapacitated to continue in the discharge of his official duties, his successor was appointed by the
Commonwealth President with confirmation by the Commission on Appointments, and said
successor had to swear to support and defend the Commonwealth Constitution; in the exotic judicial
system implanted here by the Japanese, if a Justice or Judge should die or incapacitated, his
successor would be appointed by the Japanese Commander in Chief, if the dead or incapacitated
incumbent should be the Chief Justice of the Supreme Court, or otherwise, by the Chairman of the
"Executive Commission" or the President of the "Republic", of course without confirmation by the
Commission on Appointments of the Commonwealth Congress, and, of course, without the
successor swearing to support and defend the Commonwealth Constitution.

If, as we believe having conclusively shown, the Japanese-sponsored courts were not the same
Commonwealth courts, the conclusion is unavoidable that any jurisdiction possessed by the former
and any cases left pending therein, were not and could not be automatically transfered to the
Commonwealth courts which we re-established under Executive Order No. 36. For the purpose, a
special legislation was necessary.

Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that the
President recognized as valid the proceedings in all cases appealed to the Court of Appeals. Section
2 of that order simply provides that all cases which have been duly appealed to the Court of Appeals
shall be transmitted to the Supreme Court for final decision. The adverb "duly" would indicate that
the President foresaw the possibility of appeals not having been duly taken. All cases appealed to
the Court of Appeals before the war and the otherwise duly appealed, would come under the phrase
"duly appealed" in this section of the Executive Order. But considering the determined and firm
attitude of the Commonwealth Government towards those Japanese-sponsored governments since
the beginning, it would seem inconceivable that the President Osmeña, in section 2 of Executive
Order No. 37, intended to include therein appeals taken to the Japanese-sponsored Court of
Appeals, or from the Japanese-sponsored inferior courts. It should be remembered that in the
Executive Order immediately preceeding and issued on the same date, the President speaks of re-
establishing the courts as fast as provinces were liberated from the Japanese occupation.

IV

The question boils down to whether the Commonwealth Government, as now restored, is to
be bound by the acts of either or both of those Japanese-sponsored governments.

In the last analysis, in deciding the question of validity or nullity of the proceedings involved herein,
we are confronted with the necessity to decide whether the Court of first Instance of Manila and this
Supreme Court, as re-established under the Commonwealth Constitution, and the entire
Commonwealth Government, are to be bound by the acts of the said Japanese-sponsored court and
government. To propound this question is, to my mind, to answer it most decidedly in the negative,
not only upon the ground of the legal principles but also for the reasons of national dignity and
international decency. To answer the question in the affirmative would be nothing short for legalizing
the Japanese invasion and occupation of the Philippines. Indeed, it would be virtual submission to
the dictation of an invader our people's just hatred of whom gave rise to the epic Philippine
resistance movement, which has won the admiration of the entire civilized world.

Even considerations of policy or practical convenience militate against petitioner's

contention.

In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the
following to say:

It is contended, however, that the judicial system implanted by the Philippine Executive
Commission and the Republic was the same as that of the Commonwealth prior to Japanese
occupation; that the laws administered and enforced by said courts during the existence of
said regime were the same laws on the statute books of Commonwealth before Japanese
occupation, and that even the judges who presided them were, in many instances, the same
persons who held the position prior to the Japanese occupation. All this may be true, but
other facts are just as stubborn and pitiless. One of them is that said courts were of a
government alien to the Commonwealth Government. The laws they enforced were, true
enough, laws of the Commonwealth prior to Japanese occupation, but they had become the
laws — and the Courts had become the institutions-of Japan by adoption (U.S. vs. Reiter, 27
F. Case No. 16,146), as they became later on the laws and institution of the Philippine
Executive Commission and the Republic of the Philippines. No amount of argument or legal
fiction can obliterate this fact.

Besides, I am of the opinion that the validity of the acts of the courts in the "judicial system implanted
by the Philippine Executive Commission and the Republic "would not depend upon the laws that
they "administered and enforced", but upon the authority by virtue of which they acted. If the
members of this Court were to decide the instant case in strict accordance with the Constitution and
the laws of the Commonwealth but not by the authority that they possess in their official capacity as
the Supreme Court of the Philippines, but merely as lawyers, their decision would surely be null and
void. And yet, I am firmly of opinion that whoever was the "judge" of the Japanese sponsored Court
of First Instance of Manila who presided over the said court when the proceedings and processes in
the dispute were had, in acting by virtue of the supposed authority which he was supposed to have
received from that government, did so with no more legal power than if he had acted as a mere
lawyer applying the same laws to the case. If duplication of work or effort, or even if confussion,
should be alleged to possibly arise from a declaration of nullity or judicial proceedings had before
those Japanese-sponsored courts, it should suffice to answer that the party so complaining in
voluntarily resorting to such courts should be prepared to assume the consequences of his voluntary
act. On the other hand, his convenience should not be allowed to visit upon the majority of the
inhabitants of this country, the dire consequences of a sweeping and wholesale validation of judicial
proceedings in those courts. Let us set forth a few considerations apropos of this assertion. It is a
fact of general knowledge that during the Japanese occupation of the Philippines, the overwhelming
majority of our people and other resident inhabitants were literally afraid to go any place where there
were Japanese sentries, soldiers or even civilians, and that these sentries were posted at the
entrance into cities and towns and at government offices; that the feared Japanese "M. P.'s" or
Kempeitai's" were a constant terror to them; and lastly, that the greater number who lived or had
evacuated to places for from the Japanese, were found precisely in the cities and towns where the
courts were located; and as a consequence, the great majority of the people were very strongly
adverse to traveling any considerable distance from their homes and were, one might say, in
constant hiding. Add to these circumstances, the fact of the practical absence of transportation
facilities and the no less important fact of the economic structure having been so dislocated as to
have impoverished the many in exchange for the enrichment of the few — and we shall have a fair
picture of the practical difficulties which the ordinary litigant would in those days have encountered in
defending his rights against anyone of the favored few who would bring him to court. It should be
easy to realize how hard it was for instances, to procure the attendance of witnesses, principally
because of the fact that most of them were in hiding or, at least, afraid to enter the cities and towns,
and also because of then generally difficult and abnormal conditions prevailing. Under such
conditions, cases or denial of a party's day in court expected. Such denial might arise from many a
cause. It might be party's fear to appear before the court because in doing so, he would have had to
get near the feared Japanese. It might be because he did not recognize any legal authority in that
court, or it might be his down-right repugnance of the hated enemy. And I dare say that among such
people would be found more than seventeen million Filipinos. These are but a few of countless
cause. So that if some form of validation of such judicial proceedings were to be attempted, all
necessary safeguards should be provided to avoid that in any particular case the validation should
violate any litigant's constitutional right to his day in court, within the full meaning of the phrase, or
any other constitutional or statutory right of his. More people, I am afraid, would be prejudiced than
would be benefited by a wholesale validation of said proceedings.

Much concern has been shown for the possible confusion which might result from a decision
declaring null and void the acts processes of the Japanese-sponsored governments in the
Philippines. I think, this aspect of the question has been unduly stressed. The situation is not without
remedy, but the remedy lies with the legislature and not with the courts. As the courts cannot create
a new or special jurisdiction for themselves, which is a legislative function, and as the situation
demands such new or special jurisdiction, let the legislature act in the premises. For instance, the
Congress may enact a law conferring a special jurisdiction upon the courts of its selection, whereby
said courts may, after hearing all the parties interested, and taking all the necessary safeguards, so
that, a party's day in court or other constitutional or statutory right under the Commonwealth
Government should not be prejudiced by any of said acts, processes or proceedings, particullarly,
those in Japanese-sponsored courts, and subject to such other conditions as the special law may
provide, validate the corresponding acts, processes or proceedings. This, to my mind, would be
more conducive to a maximum of benefit and a minimum of prejudice to the inhabitants of this
country, rather than the procedure favored by the majority.

Finally, let us not equalize the conditions then prevailing in Manila to that prevailing in the provinces,
where the greater number of the people where then living outside the towns, in the farms and the
hills. These people constitute the great majority of the eighteen million Filipinos. To them the
semblance of an administration of justice which Japanese allowed, was practically unknown. But
they constituted the majority of loyal citizens to whom President Roosevelt's message of October 23,
1943 refers. They — the majority of our people — had an unshaken faith in the arrival of American
aid here and the final triumph of the Allied cause. They were willing to wait for the restoration of their
rightful government, with its courts and other institutions, for the settlement of their differences. May
in their common hardship and sufferings under yoke of foreign oppression, they had not much time
to think of such differences, if they did not utterly forget them. Their undoubted hatred of the invader
was enough to keep them away from the judicial system that said invader allowed to have. Those
who voluntarily went to the courts in those tragic days belong to the small minority.

As to the public order — why! any public order which then existed was not due to the courts or other
departments of the puppet government. It was maintained at the point of the bayonet by the
Japanese army, and in their own unique fashion.

Footnotes

1 Resolution on motion for reconsideration, see p. 371, post.

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10

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

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope.26There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He
issued the following press statement:30

"20 January 2001

STATEMENT FROM
 PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice —
Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001. 1âw phi 1.nêt
 This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera,
et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829,
PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo
Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an
Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as
other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
 against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

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

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
"… it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers
under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid
down that "it is emphatically the province and duty of the judicial department to say what the
law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the
dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
– it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal
 We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx
11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'
It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as
it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled
to render service for that would be a violation of his constitutional right.94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

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

Whether or not the petitioner Is only temporarily unable to Act as President.

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

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96
On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,
 (Sgd.) FELICIANO BELMONTE JR.
Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S

NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines – qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President

Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,
 (Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS

OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this
Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable
and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is political in nature
and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands.
J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of
Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ
of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
 General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims. Second, we enlarged its
 scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure"
but not beyond. Considering the peculiar circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted
in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and
related cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery
and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio."119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
 itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there
must be allegation and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at a bar, the records do not show that
the trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case – the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
 bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their
26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. 1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

Footnotes

1 Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

2 PDI, October 6, 2000, pp. A1 and A18.

3 Ibid., October 12, 2000, pp. A1 and A17.

4 Ibid., October 14, 2000, p. A1.

5 Ibid., October 18, 2000, p. A1.

6 Ibid., October 13, 2000, pp. A1 and A21.

7 Ibid., October 26, 2000, p. A1.

8 Ibid., November 2, 2000, p. A1.

9 Ibid., November 3, 2000, p. A1.

10 Ibid., November 4, 2000, p. A1.

11The complaint for impeachment was based on the following grounds: bribery, graft and
corruption, betrayal of public trust, and culpable violation of the Constitution.

12 Ibid., November 14, 2000, p. A1.

13 Ibid., November 21, 2000, p. A1.

14 Ibid., December 8, 2000, p. A1.

15 Ibid., December 23, 2000, pp. A1 and A19.

16 Ibid., January 12, 2001, p. A1.

Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon,
17

Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmeña III. Those who vote "no"
were Senators Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile,
Honasan, Jaworski, Revilla, Sotto III and Tatad.

18 Philippine Star, January 17, 2001, p. 1.

19 Ibid., January 18, 2001, p. 4.

20 Ibid., p. 1.
21 Ibid., January 19, 2001, pp. 1 and 8.

"Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"),
22

PDI, February 4, 2001, p. A16.

23 Philippine Star, January 20, 2001, p. 4.

24 PDI, February 4, 2001, p. A16.

25 Philippine Star, January 20, 2001, pp. 1 and 11.

26 Ibid., January 20, 2001, p. 3.

27 PDI, February 5, 2001, pp. A1 and A6.

28 Philippine Star, January 21, 2001, p. 1.

29 PDI, February 6, 2001, p. A12.

30 Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

31 Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

32 Ibid.

33 Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

34Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001,
p. 3; PDI, January 25, 2001, pp. A1 and A15.

35 Philippine Star, January 24, 2001, p. 1.

36 PDI, January 25, 2001, p. 1.

37 Ibid., p. 2.

38 Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290.

39 Annex D, id; ibid., p. 292.

40 PDI, January 27, 2001, p. 1.

41 PDI, February 13, 2001, p. A2.

42 Philippine Star, February 13, 2001, p. A2.

43 Annex E, id.; ibid., p. 295.

44 PDI, February 8, 2001, pp. A1 & A19.

45 Annex F, id.; ibid., p. 297.

46 PDI, February 10, 2001, p. A2.

47 Annex G, id.; ibid., p. 299.

48 PDI, February 8, 2001, p. A19.

49 Philippine Star, February 3, 2001, p. 4.

50"Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16,

2001, p. 14.

51See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos.
146710-15, pp. 525-527.

52See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp.120-
125.

53 Rollo, G.R. No. 146738, p. 134.

54Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos.
146710-15, Vol. III, pp. 809-820.

55 Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46.

56 369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962).

57 See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15
August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA
756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos
v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag
v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil
192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).

58 103 Phil 1051, 1068 (1957).

59 Section 1, Article VIII, 1987 Constitution.

60
Note that the early treatises on Constitutional Law are discourses on limitations of power
typical of which is, Cooley's Constitutional Limitations.

61 Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres.
Corazon C. Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the
Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay
v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.

62 Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992].

63 Proclamation No. 3 (1986).

64 It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will
faithfully and conscientiously fulfill my duties as President o the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every man, and consecrate myself to
the service of the nation.

So help me God.

(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332)

65 See "Filipinas Despues de Cien Años" (The Philippines a Century Hence), p. 62.

66
The guaranty was taken from Amendment I of the US Constitution which provides:
"Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievance."

67 See section 8, Article IV.

68 See section 9, Article IV.

69 Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

70Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357,
375-76) where he said "… the greatest menace to freedom is an inert people …"

71 307 US 496 (1939).

72 Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.

73 260 SCRA 798 (1996).

74 Section 1, Article II of the 1987 Constitution reads:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them."

75 Infra at 26.

76 Infra at 41.

77 1 Cranch (5 US) 137, 2 L ed 60 (1803).

78 Gonzales v. Hernandez, 2 SCRA 228 (1961).

79 See its February 4, 5, and 6, 2001 issues.

80 PDI, February 4, 2001, p. A1.

81 Ibid.

82 Ibid.

83 Ibid.

84 Ibid.

85 Ibid.

86 PDI, February 5, 2001, p. A1.

87 Ibid., p. A-1.

88 Ibid.

89 PDI, February 5, 2001, P. A6.

90 PDI, February 6, 2001, p. A1.

In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary
91

Angara stated that the letter came from Asst. Secretary Boying Remulla; that he and Political
Adviser Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner
would not sign the letter.

92 Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.

93 Id., May 9, 1959, p. 1988

94Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any
form shall exist except as a punishment for a crime whereof the party shall have been duly
convicted."

95 Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV.

96 House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:

"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA
MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES

WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as
the 14th President of the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of
the people is the voice of God" establishes the basis of her mandate on integrity and morality
in government;

WHEREAS, the House of Representatives joins the church, youth, labor and business
sectors in fully supporting the President's strong determination to succeed;
WHEREAS, the House of Representatives is likewise one with the people in supporting
President Gloria Macapagal-Arroyo's call to start the healing and cleansing process for a
divided nation in order to 'build an edifice of peace, progress and economic stability' for the
country: Now, therefore, be it

Resolved by the House of Representatives, To express its full support to the administration
of Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

97 11th Congress, 3rd Session (2001).

98 11th Congress, 3rd Session (2001).

99 Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol.
II, p. 231.

100 11th Congress, 3rd Session (2001).

101 11th Congress, 3rd Session (2001).

102 103 Phil 1051, 1067 (1957).

103 Baker vs. Carr, supra at 686 headnote 29.

104 16 Phil 534 (1910).

105The logical basis for executive immunity from suit was originally founded upon the idea
that the "King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L.
Rev., 303 (1959)]. The concept thrived at the time of absolute monarchies in medieval
England when it was generally accepted that the seat of sovereignty and governmental
power resides in the throne. During that historical, juncture, it was believed that allowing the
King to be sued in his courts was a contradiction to the sovereignty of the King.

With the development of democratic thoughts and institutions, this kind of rationalization
eventually lost its moral force. In the United States, for example, the common law maxim
regarding the King's infallibility had limited reception among the framers of the Constitution.
[J. Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of
Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times, retaining both its relevance and
vitality. The privilege, however, is now justified for different reasons. First, the doctrine is
rooted in the constitutional tradition of separation of powers and supported by history. [Nixon
v. Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as
demanding the executive's independence from the judiciary, so that the President should not
be subject to the judiciary's whim. Second, by reason of public convenience, the grant is to
assure the exercise of presidential duties and functions free from any hindrance or
distraction, considering that the Chief Executive is a job that, aside from requiring all of the
office-holder's time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393
(1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling
litigation, disrespect upon his person will be generated, and distrust in the government will
soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public
policy, it was recognized that the gains from discouraging official excesses might be more
than offset by the losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity,
the president would be disinclined to exercise decision-making functions in a manner that
might detrimentally affect an individual or group of individuals. [See H. Schechter, Immunity
of Presidential Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].

106 62 Phil. L.J. 113 (1987).

107 See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

108 Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.

109 Supra at 47.

110 Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

111 145 SCRA 160 (1986).

112 128 SCRA 324 (1984).

In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988);
113

and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).,

114 Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).

115 418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).

116 457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

117 520 U.S. 681 (1997).

118 See section 1, Art. XI of the 1987 Constitution.

119 See section 27, Art. II of the 1987 Constitution.

120 See, section 1, Art. XI of the 1987 Constitution.

121 See section 15, Art. XI of the 1987 Constitution.

 122 See section 4, Art. XI of the 1987 Constitution.

123 See section 13 (1), Art. XI of the 1987 Constitution.

124 See section 14, Art. XI of the 1987 Constitution.

See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American
125

Approaches to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75,
No. 5, pp. 1412-1451 (November 2000).

126 Id., p. 1417.

See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee,
127

249 SCRA 54 (1995)

128 249 SCRA 54 (1955)

129 287 SCRA 581 at pp. 596-597 (1998)

130 247 SCRA 652 (1995)

Extensive publicity did not result in the conviction of well known personalities. E.g., OJ
131

Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.

132 Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

134 See section 4, Rule 112.

135 Estes v. Texas, 381 US 532, 540 (1965).

CONCURRING OPINION

VITUG, J.:

This nation has a great and rich history authored by its people. The EDSA Revolution of 2001 could
have been one innocuous phenomenon buried in the pages of our history but for its critical
dimensions. Now, EDSA 2 would be far from being just another event in our annals. To this day, it is
asked – Is Mr. Joseph Ejercito Estrada still the President of the Republic of the Philippines?

To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph
Ejercito Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than 10 million
Filipinos in the elections of May 1998, served well over two years until January 2001. Formally
impeached by the Lower House of Representatives for cases of Graft and Corruption, Bribery,
Betrayal of Public Trust and Culpable violation of the Constitution, he was tried by the Senate. The
Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada- if convicted, he would be
removed from office and face prosecution with the regular courts or, if acquitted, he would remain in
office. An evidence, however, presented by the prosecution tagged as the "second envelope" would
have it differently. The denial by the impeachment court of the pleas to have the dreaded envelope
opened promptly put the trial into a halt. Within hours after the controversial Senate decision, an
angered people trooped again to the site of the previous uprising in 1986 that toppled the 20-year
rule of former President Ferdinand E. Marcos - EDSA. Arriving in trickles, the motley gathering
swelled to an estimated million on the fourth day, with several hundreds more nearing Mendiola
reportedly poised to storm Malacañang.

In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for
him to resign. At this time, Estrada was a picture of a man, elected into the Presidency, but
beleaguered by solitude-empty of the support by the military and the police, abandoned most of his
cabinet members, and with hardly any firm succor from constituents. And despite the alleged
popularity that brought him to power, mass sentiment now appeared to be for his immediate ouster.

With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo,
then incumbent Vice-President, took the cue and requested the Chief Justice her oath-taking. In a
letter, sent through "fax" at about half past seven o'clock in the morning of 20 January 2001, read:

"The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is
permanently incapable of performing the duties of his office resulting in his permanent disability to
govern the serve his unexpired term. Almost all of his cabinet members have resigned and the
Philippine National police have withdrawn their support for Joseph Ejercito Estrada. Civil society has
likewise refused to recognize him as President.

"In view of this, I am assuming the position of the president of the Republic of the Philippines.
Accordingly, I would like to take my oath as President of the republic before the Honorable Chief
Justice Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine, Quezon City,
Metro Manila.

"May I have the honor to invite the members of the Honorable Court to attend the oath-taking."

The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible
catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant that it had to
keep its doors open, had to help assure that the judicial process was seen to be functioning. As the
hours passed, however, the extremely volatile situation was getting more precarious by the minute,
and the combustible ingredients were all but ready to ignite. The country was faced with a
phenomenon --- the phenomenon of a people, who, in the exercise of sovereignty perhaps too
limitless to be explicitly contained and constrained by the limited words and phrases of the
constitution, directly sought to remove their president from office. On that morning of the 20th of
January, the his tribunal was confronted with a dilemma ----- should it choose a literal and narrow
view of the constitution, invoke the rule of strict law, and exercise its characteristics reticence? Or
was it propitious for it to itself take a hand? The first was fraught with danger and evidently too risky
to accept. The second could very well help avert imminent bloodshed. Given the realities; the Court
was left hardly with choice. Paradoxically, the first option would almost certainly imperil the
Constitution, the second could save it. The confirmatory resolution was issued following the en
banc session of the Court on 22 January 2001; it read:

"A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal-Arroyo to take her Oath of
Office as President of the Philippines before the Chief Justice- Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines,
addressed to the Chief Justice and confirmed letter to the Court, dated January 20, 2001, which
request was treated as an administrative matter, the Court resolved unanimously to CONFIRM the
authority given by the twelve (12) members of the Court then present to the Chief justice on January
20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of
the Philippines, at noon of January 20, 2001.
"This resolution is without prejudice to the disposition of any justiceable case which may be filed by a
proper party."

At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th
President of the Republic of the Philippines. EDSA, once again, had its momentous role in yet
another "bloodless revolution." The Court could not have remained placid amidst the worsening
situation at the time. It could not in conscience allow the high-strung emotions and passions of
EDSA to reach the gates of Malacañang. The military and police defections created stigma that
could not be left unguarded by a vacuum in the presidency. The danger was simply overwhelming.
The extra-ordinariness of the reality called for an extra-ordinary solution. The court has chosen to
prevent rather than cure an enigma incapable of being recoiled.

The alarming social unrest ceased as the emergence of a new leadership so unfolded. The promise
of healing the battered nation engulfed the spirit but it was not to last. Questions were raised on the
legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist that he was
still President and that Mme. Macapagal-Arroyo took over only in an acting capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the
Vice-President may assume the presidency only in its explicitly prescribed instances; to wit, firstly, in
case of death, permanent disability, removal from office, or resignation of the President,1secondly,
when the President of the Senate and the Speaker of the House of representatives his written declaration
that he is unable to discharge the powers and duties of his office, 2 and thirdly, when a majority of all the
members of the cabinet transmit to the President and to the speaker of the House of representatives their
written declaration that the President is unable to discharge the powers and duties of his office, 3 the
latter two grounds being culled as the "disability."

Mr. Estrada believes that he cannot be considered to have relinquished his office for none of the
above situations have occurred. The conditions for constitutional succession have not been met. He
states that he has merely been "temporarily incapacitated" to discharge his duties, and he invokes
his letters to both Chambers of the Congress consistent with section 11 of Article VII of the 1987
Constitution. The twin letters, dated 20 January 2001, to the two houses read:

"By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the Vice-President shall be acting President."

Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling the
case.

The pressing issue must now catapult to its end.

Resignation is an act of giving up or the act of an officer by which he renounces his office
indefinitely. In order to constitute a complete and operative act of resignation, the officer or employee
must show a clear intention to relinquish or surrender his position accompanied by an act of
relinquishment. Resignation implies, of the intention to surrender, renounce, relinquish the office. 4

Mr. Estrada imports that he did not resign from the presidency because the word "resignation" has
not once been embodied in his letters or said in his statements. I am unable to oblige. The
contemporary acts of Estrada during those four critical days of January are evident of his intention to
relinquish his office. Scarcity of words may not easily cloak reality and hide true intentions. Crippled
to discharge his duties, the embattled President acceded to have negotiations conducted for a
smooth transition of power. The belated proposals of the President to have the impeachment Court
allow the opening of the controversial envelope and to postpone his resignation until 24 January
2001 were both rejected. On the morning of 20 January 2001, the President sent to congress the
following letter ---

"By virtue of the provisions of Section II, Article VII, of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the vice-president shall be the acting president."

Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the
morning but the Senate president was said to have received a copy only on the evening of that day.
Nor this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and
inutility in office – not so much by the confluence of events that forces him to step down the seat of
power in a poignant and teary farewell as the recognition of the will of the governed to whom he
owned allegiance. In his "valedictory message," he wrote:

"At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of
the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as President, I
do not wish to be a factor that will prevent the restoration of unity and order in our civil society.

"It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the palace of
our people with gratitude for the opportunities given to me for service to our people. I will not shirk
from any future challenges that may come ahead in the same service of our country.

"I call on all my supporters and followers to join me in the promotion of a constructive national spirit
of reconciliation and solidarity.

"May the Almighty bless our country and our beloved people.

"MABUHAY!

Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office
although not attending by the formalities normally observed in resignation. Abandonment may be
effected by a positive act or can be the result of an omission, whether deliberate or not. 6

Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution.
This assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions
those that are personal, either by physical or mental in nature, 7 and innate to the individual. If it
were otherwise, when then would the disability last? Would it be when the confluent causes which
have brought about that disability are completely set in reverse? Surely, the idea fails to register well
to the simple mind.

Neither can it be implied that the takeover has installed a revolutionary government. A revolutionary
government is one which has taken the seat of power by force or in defiance of the legal processes.
Within the political context, a revolution is a complete overthrow of the established government.8 In
its delimited concept, it is characterized often,9 albeit not always,10 by violence as a means and
specificable range of goals as ends. In contrast, EDSA 2 did not envision radical changes. The
government structure has remained intact. Succession to the presidency has been by the duly-
elected Vice-president of the Republic. The military and the police, down the line, have felt to be so
acting in obedience to their mandate as the protector of the people.

Any revolution, whether it is violent or not, involves a radical change. Huntington sees revolution as
being "a rapid, fundamental and violent domestic change in the dominant values and myths of
society in its political institution, social structure, leadership, government activity and policies.11 "
The distinguished A.J. Milne makes a differentiation between constitutional political action and
a revolutionary political action. A constitutional political action, according to him, is a political within a
legal framework and rests upon a moral commitment to uphold the authority of law. A revolutionary
political action, on the other hand, acknowledges no such moral commitment. The latter is directly
towards overthrowing the existing legal order and replacing it with something else.12 And what, one
might ask, is the "legal order" referred to? It is an authoritative code of a polity comprising enacted
rules, along with those in the Constitution13 and concerns itself with structures rather than
personalities in the establishments. Accordingly, structure would prefer to the different branches of
the government and personalities would be the power-holders. If determination would be made
whether a specific legal order is intact or not, what can be vital is not the change in the personalities
but a change in the structure.

The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the obligation of
the legal order. The constitutionally-established government structures, embracing various offices
under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and
still other entities, including the Armed Forces of the Philippines and the Philippine National Police
and local governments as well, have all remained intact and functioning.

An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore
the basic tenet of constitutionalism and to functionalize the clearly preponderant facts.

More than just an eloquent piece of frozen document, the Constitution should be deemed to be a
living testament and memorial of the sovereign will of the people from whom all government
authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by
time, it grows and copes with the changing milieu. The framers of the constitution could not have
anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in
details, but enunciates the general tenets that are intended to apply to all facts that may come about
but which can be brought within its directions. 14 Behind its conciseness is its inclusiveness and its
apertures overridingly lie, not fragmented but integrated and encompassing, its spirit and its intent.
The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and
hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to
be an enduring instrument, its interpretation is not be confined to the conditions and outlook which
prevail at the time of its adoption15 instead, it must be given flexible to bring it in accord with the
vicissitudes of changing and advancing affairs of men.16 Technicalities and play of words cannot
frustrate the inevitable because there is an immense difference between legalism and justice. If only
to secure our democracy and to keep the social order – technicalities must give away. It has been
said that the real essence of justice does not emanate from quibblings over patchwork legal
technicality but proceeds from the spirit's gut consciousness of the dynamic role as a brick in the
ultimate development of social edifice.17 Anything else defeats the spirit and intent of the
Constitution for which it is formulated and reduces its mandate to irrelevance and obscurity.
All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the
revolutionary government that we know. The new government, now undoubtedly in effective control
of the entire country, domestically and internationally recognized to be legitimate, acknowledging a
previous pronouncement of the court, 18 is a de jure government both in fact and in law. The basic
structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been
saved and preserved. Inevitably, Gloria Macapagal-Arroyo is the President, not merely an Acting
President, of the Republic of the Philippines.

A reminder of an elder to the youth. After two non-violent civilian uprising within just a short span
of years between them, it might be said that popular mass action is fast becoming an
institutionalized enterprise. Should the streets now be the venue for the exercise of popular
democracy? Where does one draw the line between the rule of law and the rule of the mob, or
between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of the
Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and shifting
sands and might tragically open a Pandora's box more potent than the malaise it seeks to address.
Conventional wisdom dictates the indispensable need for great sobriety and extreme cir