Consitutional Law Cases
Consitutional Law Cases
Consitutional Law Cases
G.R. No. L-32432 September 11, 1970 On June 17, 1969, Congress, also acting as a Constituent
Assembly, passed Resolution No. 4 amending the aforesaid
Resolution No. 2 of March 16, 1967 by providing that the
MANUEL B. IMBONG, petitioner,
convention "shall be composed of 320 delegates apportioned
vs.
among the existing representative districts according to the
JAIME FERRER, as Chairman of the Comelec, LINO M.
number of their respective inhabitants: Provided, that a
PATAJO and CESAR MILAFLOR, as members
thereof, respondents. representative district shall be entitled to at least two delegates,
who shall have the same qualifications as those required of
members of the House of Representatives,"1 "and that any other
G.R. No. L-32443 September 11, 1970 details relating to the specific apportionment of delegates,
election of delegates to, and the holding of, the Constitutional
IN THE MATTER OF A PETITION FOR Convention shall be embodied in an implementing legislation:
DECLARATORY JUDGMENT REGARDING THE Provided, that it shall not be inconsistent with the provisions of
VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN this Resolution."2
AS THE CONSTITUTIONAL CONVENTION ACT OF
1970. RAUL M. GONZALES, petitioner, On August 24, 1970, Congress, acting as a legislative body,
vs. enacted Republic Act No. 6132, implementing Resolutions
COMELEC, respondent. Nos. 2 and 4, and expressly repealing R.A. No.
4914.3
Manuel B. Imbong in his own behalf.
Petitioner Raul M. Gonzales assails the validity of the entire law
Raul M. Gonzales in his own behalf. as well as the particular provisions embodied in Sections 2, 4,
5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the
Office of the Solicitor General Felix Q. Antonio, Acting constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132
Assistant Solicitor General Ricardo L. Pronove, Jr., and practically on the same grounds advanced by petitioner
Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Gonzales.
Vicente A. Torres and Guillermo C. Nakar for respondents.
I
Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and
Emmanuel Pelaez as amici curiae. The validity of Sec. 4 of R.A. No. 6132, which considers, all
public officers and employees, whether elective or appointive,
MAKASIAR, J.: including members of the Armed Forces of the Philippines, as
well as officers and employees of corporations or enterprises of
These two separate but related petitions for declaratory relief the government, as resigned from the date of the filing of their
were filed pursuant to Sec. 19 of R.A. No. 6132 by petitioners certificates of candidacy, was recently sustained by this Court,
Manuel B. Imbong and Raul M. Gonzales, both members of the on the grounds, inter alia, that the same is merely an application
Bar, taxpayers and interested in running as candidates for of and in consonance with the prohibition in Sec. 2 of Art. XII
delegates to the Constitutional Convention. Both impugn the of the Constitution and that it does not constitute a denial of due
constitutionality of R.A. No. 6132, claiming during the oral process or of the equal protection of the law. Likewise, the
argument that it prejudices their rights as such candidates. After constitutionality of paragraph 2 of Sec. 8(a) of R.A. No. 6132
the Solicitor General had filed answers in behalf the was upheld.4
respondents, hearings were held at which the petitioners and the
amici curiae, namely Senator Lorenzo Tañada, Senator Arturo II
Tolentino, Senator Jovito Salonga, and Senator Emmanuel
Pelaez argued orally. Without first considering the validity of its specific provisions,
we sustain the constitutionality of the enactment of R.A. No.
It will be recalled that on March 16, 1967, Congress, acting as 6132 by Congress acting as a legislative body in the exercise of
a Constituent Assembly pursuant to Art. XV of the its broad law-making authority, and not as a Constituent
Constitution, passed Resolution No. 2 which among others Assembly, because —
called for a Constitutional Convention to propose constitutional
amendments to be composed of two delegates from each 1. Congress, when acting as a Constituent
representative district who shall have the same qualifications as Assembly pursuant to Art. XV of the
those of Congressmen, to be elected on the second Tuesday of Constitution, has full and plenary authority to
November, 1970 in accordance with the Revised Election Code. propose Constitutional amendments or to call
a convention for the purpose, by a three- resolution prescribing the required
fourths vote of each House in joint session implementing details.
assembled but voting separately. Resolutions
Nos. 2 and 4 calling for a constitutional III
convention were passed by the required
three-fourths vote.
Petitioner Raul M. Gonzales asserts that Sec. 2 on the
apportionment of delegates is not in accordance with
2. The grant to Congress as a Constituent proportional representation and therefore violates the
Assembly of such plenary authority to call a Constitution and the intent of the law itself, without pinpointing
constitutional convention includes, by virtue any specific provision of the Constitution with which it collides.
of the doctrine of necessary implication, all
other powers essential to the effective
Unlike in the apportionment of representative districts, the
exercise of the principal power granted, such Constitution does not expressly or impliedly require such
as the power to fix the qualifications, number, apportionment of delegates to the convention on the basis of
apportionment, and compensation of the
population in each congressional district. Congress, sitting as a
delegates as well as appropriation of funds to
Constituent Assembly, may constitutionally allocate one
meet the expenses for the election of
delegate for, each congressional district or for each province,
delegates and for the operation of the
for reasons of economy and to avoid having an unwieldy
Constitutional Convention itself, as well as convention. If the framers of the present Constitution wanted
all other implementing details indispensable the apportionment of delegates to the convention to be based on
to a fruitful convention. Resolutions Nos. 2
the number of inhabitants in each representative district, they
and 4 already embody the above-mentioned
would have done so in so many words as they did in relation to
details, except the appropriation of funds.
the apportionment of the representative districts.5
2. any political party, political group, The right of association is affected. Political
political committee, civic, religious, parties have less freedom as to the time
professional or other organizations or during which they may nominate candidates;
organized group of whatever nature from the curtailment is not such, however, as to
render meaningless such a basic right. Their
scope of legitimate activities, save this one, is
(a) intervening in the
not unduly narrowed. Neither is there
nomination of any such
infringement of their freedom to assemble.
candidate or in the filing of
They can do so, but not for such a purpose.
his certificate, or
We sustain its validity. We do so But aside from the clear and imminent danger of the
unanimously. 10 debasement of the electoral process, as conceded by Senator
Pelaez, the basic motivation, according to Senate Majority
In said Gonzales vs. Comelec case, this Court likewise held that Floor Leader Senator Arturo Tolentino, the sponsor of the
the period for the conduct of an election campaign or partisan Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a) of
political activity may be limited without offending the R.A. No. 6132, is to assure the candidates equal protection of
aforementioned constitutional guarantees as the same is the laws by according them equality of chances. 16 The primary
designed also to prevent a "clear and present danger of a purpose of the prohibition then is also to avert the clear and
substantive evil, the debasement of the electoral process." 11 present danger of another substantive evil, the denial of the
equal protection of the laws. The candidates must depend on
their individual merits and not on the support of political parties
Even if the partisan activity consists of (a) forming
or organizations. Senator Tolentino and Senator Salonga
organizations, associations, clubs, committees or other group of
emphasized that under this provision, the poor candidate has an
persons for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a party or candidate; even chance as against the rich candidate. We are not prepared
(b) holding political conventions, caucuses, conferences, to disagree with them, because such a conclusion, predicated as
it is on empirical logic, finds support in our recent political
meetings, rallies, parades or other similar assemblies for the
history and experience. Both Senators stressed that the
purpose of soliciting votes and/or undertaking any campaign or
independent candidate who wins in the election against a
propaganda for or against any candidate or party; and (c) giving,
candidate of the major political parties, is a rare phenomenon in
soliciting, or receiving contributions for election campaign
either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c), this country and the victory of an independent candidate mainly
R.A. 4880), the abridgment was still affirmed as constitutional rests on his ability to match the resources, financial and
otherwise, of the political parties or organizations supporting
by six members of this Court, which could not "ignore ... the
his opponent. This position is further strengthened by the
legislative declaration that its enactment was in response to a
principle that the guarantee of social justice under Sec. V, Art.
serious substantive evil affecting the electoral process, not
merely in danger of happening, but actually in existence, and II of the Constitution, includes the guarantee of equal
likely to continue unless curbed or remedied. To assert opportunity, equality of political rights, and equality before the
law enunciated by Mr. Justice Tuazon in the case Guido vs.
otherwise would be to close one's eyes to the reality of the
Rural Progress Administration. 17
situation." 12;
Likewise, because four members dissented, this Court in said While it may be true that a party's support of a candidate is not
case of Gonzales vs. Comelec, supra, failed to muster the wrong per se it is equally true that Congress in the exercise of
its broad law-making authority can declare certain acts as mala
required eight votes to declare as unconstitutional the limitation
prohibita when justified by the exigencies of the times. One
on the period for (a) making speeches, announcements or
such act is the party or organization support proscribed in Sec.
commentaries or holding interviews for or against the election
8(a),which ban is a valid limitation on the freedom of
of any party or candidate for public office; (b) publishing or
distributing campaign literature or materials; and (e) directly or association as well as expression, for the reasons aforestated.
indirectly soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party specified in Senator Tolentino emphasized that "equality of chances may be
Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880. 13 better attained by banning all organization support." 18
The debasement of the electoral process as a substantive evil The questioned par. 1 of Sec. 8 (a) likewise can easily pass the
exists today and is one of the major compelling interests that balancing-of-interest test. 19
moved Congress into prescribing the total ban contained in par.
1 of Sec. 8(a) of R.A. No. 6132, to justify such ban. In the In the apt words of the Solicitor General:
said Gonzales vs. Comelec case, this Court gave "due
recognition to the legislative concern to cleanse, and if possible, It is to be noted that right now the nation is on
render spotless, the electoral process," 14 impressed as it was by the threshold of rewriting its Constitution in
the explanation made by the author of R.A. No. 4880, Sen. a hopeful endeavor to find a solution to the
Lorenzo Tañada, who appeared as amicus curiae, "that such grave economic, social and political
provisions were deemed by the legislative body to be part and problems besetting the country. Instead of
parcel of the necessary and appropriate response not merely to directly proposing the amendments Congress
a clear and present danger but to the actual existence of a grave has chosen to call a Constitutional
and substantive evil of excessive partisanship, dishonesty and Convention which shall have the task of
corruption as well as violence that of late has marred election fashioning a document that shall embody the
campaigns and partisan political activities in this country. He aspirations and ideals of the people. Because
did invite our attention likewise to the well-settled doctrine that what is to be amended is the fundamental law
in the choice of remedies for an admitted malady requiring of the land, it is indispensable that the
governmental action, on the legislature primarily rests the Constitutional Convention be composed of
responsibility. Nor should the cure prescribed by it, unless delegates truly representative of the people's
clearly repugnant to fundamental rights, be ignored or will. Public welfare demands that the
disregarded." 15 delegates should speak for the entire nation,
and their voices be not those of a particular "D", wherein the Senator stated that his own "Timawa" group
segment of the citizenry, or of a particular had agreed with the Liberal Party in Iloilo to support petitioner
class or group of people, be they religious, Gonzales and two others as their candidates for the convention,
political, civic or professional in character. which organized support is nullified by the questioned ban,
Senator Pelaez, Chairman of the Senate Senator Ganzon stressed that "without the group moving and
Committee on Codes and Constitutional working in joint collective effort" they cannot "exercise
Amendments, eloquently stated that "the effective control and supervision over our
function of a constitution is not to represent leaders — the Women's League, the area commanders, etc.";
anyone in interest or set of interests, not to but with their joining with the LP's they "could have presented
favor one group at the expense or a solid front with very bright chances of capturing all seats."
disadvantage of the candidates — but to
encompass all the interests that exist within The civic associations other than political parties cannot with
our society and to blend them into one reason insist that they should be exempted from the ban;
harmonious and balanced whole. For the because then by such exemption they would be free to utilize
constitutional system means, not the the facilities of the campaign machineries which they are
predominance of interests, but the denying to the political parties. Whenever all organization
harmonious balancing thereof." engages in a political activity, as in this campaign for election
of delegates to the Constitutional Convention, to that extent it
So that the purpose for calling the partakes of the nature of a political organization. This, despite
Constitutional Convention will not be the fact that the Constitution and by laws of such civic,
deflated or frustrated, it is necessary that the religious, or professional associations usually prohibit the
delegatee thereto be independent, beholden to association from engaging in partisan political activity or
no one but to God, country and conscience. supporting any candidate for an elective office. Hence, they
must likewise respect the ban.
xxx xxx xxx
The freedom of association also implies the liberty not to
The evil therefore, which the law seeks to associate or join with others or join any existing organization.
prevent lies in the election of delegates who, A person may run independently on his own merits without
because they have been chosen with the aid need of catering to a political party or any other association for
and resources of organizations, cannot be support. And he, as much as the candidate whose candidacy
expected to be sufficiently representative of does not evoke sympathy from any political party or organized
the people. Such delegates could very well be group, must be afforded equal chances. As emphasized by
the spokesmen of narrow political, religious Senators Tolentino and Salonga, this ban is to assure equal
or economic interest and not of the great chances to a candidate with talent and imbued with patriotism
majority of the people. 20 as well as nobility of purpose, so that the country can utilize
their services if elected.
We likewise concur with the Solicitor General that the equal
protection of the laws is not unduly subverted in par. I of Sec. Impressed as We are by the eloquent and masterly exposition of
8(a); because it does not create any hostile discrimination Senator Tañada for the invalidation of par. 1 of Sec. 8(a) of R.A.
against any party or group nor does it confer undue favor or No. 6132, demonstrating once again his deep concern for the
privilege on an individual as heretofore stated. The preservation of our civil liberties enshrined in the Bill of Rights,
discrimination applies to all organizations, whether political We are not persuaded to entertain the belief that the challenged
parties or social, civic, religious, or professional associations. ban transcends the limits of constitutional invasion of such
The ban is germane to the objectives of the law, which are to cherished immunities.
avert the debasement of the electoral process, and to attain real
equality of chances among individual candidates and thereby WHEREFORE, the prayers in both petitions are hereby denied
make real the guarantee of equal protection of the laws. and R.A. No. 6132 including Secs. 2, 4, 5, and 8(a), paragraph
1, thereof, cannot be declared unconstitutional. Without costs.
The political parties and the other organized groups have built-
in advantages because of their machinery and other facilities, Reyes, J.B.L., Dizon and Castro, JJ., concur.
which, the individual candidate who is without any organization
support, does not have. The fact that the other civic of religious Makalintal, J., concurs in the result.
organizations cannot have a campaign machinery as efficient as
that of a political party, does not vary the situation; because it
Teehankee, J., is on leave.
still has that much built-in advantage as against the individual
candidate without similar support. Moreover, these civic
religious and professional organization may band together to Separate Opinions
support common candidates, who advocates the reforms that
these organizations champion and believe are imperative. This FERNANDO, J., concurring and dissenting:
is admitted by petitioner Gonzales thru the letter of Senator
Ganzon dated August 17, 1970 attached to his petition as Annex
The opinion of Justice Makasiar speaking for the Court, organization as well as of such political party, political group,
comprehensive in scope, persuasive in character and lucid in political committee, civic, religious, professional or other
expression, has much to recommend it. On the whole, I concur. organization or organized group intervening in his nomination,
I find difficulty, however, in accepting the conclusion that there in the filing of his certificate of candidacy, or giving aid or
is no basis for the challenge hurled against the validity of this support, directly or indirectly, material or otherwise, favorable
provision: "No candidate for delegate to the Convention shall to or against his campaign for election as such delegate. I find
represent or allow himself to be represented as being a the conclusion inescapabe therefore, that what the constitutional
candidate of any political party or any other organization, and provisions in question allow, more specifically the right to form
no political party, political group, political committee, civic, associations, is prohibited. The infirmity of the ban is thus
religious, professional, or other organization or organized group apparent on its face.
of whatever nature shall intervene in the nomination of any such
candidate or in the filing of his certificate of candidacy or give There is, to my mind, another avenue of approach that leads to
aid or support directly or indirectly, material or otherwise, the same conclusion. The final proviso in the same section of
favorable to or against his campaign for election: ..." 1 It is with the Act forbids any construction that would in any wise "impair
regret then that I dissent from that portion of the decision. or abridge the freedom of civic, political, religious,
professional, trade organizations or organized groups of
1. I find it difficult to reconcile the decision reached insofar as whatever nature to disseminate information about, or arouse
the aforesaid ban on political parties and civic, professional and public interest in, the forthcoming Constitutional Convention,
other organizations is concerned with the explicit provision that or to advocate constitutional reforms, programs, policies or
the freedom to form associations or societies for purposes not proposals for amendment of the present Constitution, and no
contrary to law shall not be abridged.2 The right of an individual prohibition contained herein shall limit or curtail the right of
to join others of a like persuasion to pursue common objectives their members, as long as they act individually, to support or
and to engage in activities is embraced within if not actually oppose any candidate for delegate to the Constitutional
encouraged by the regime of liberty ordained by the Convention."8 It is regrettable that such an explicit recognition
Constitution. This particular freedom has an indigenous cast, its of what cannot be forbidden consistently with the constitutional
origin being traceable to the Malolos Constitution. guarantees of freedom of expression and freedom of association
falls short of according full respect to what is thus commanded,
In the United States, in the absence of an explicit provision of by the fundamental law, as they are precluded by the very same
such character, it is the view of Justice Douglas, in a 1963 Act from giving aid or support precisely to the very individuals
article, that it is primarily the First Amendment of her who can carry out whatever constitutional reforms, programs,
Constitution, which safeguards freedom of speech and of the policies or proposals for amendment they might advocate. As
press, of assembly and of petition "that provides [associations] thus viewed, the conviction I entertain as to its lack of validity
with the protection they need if they are to remain viable and is further strengthened and fortified.
continue to contribute to our Free Society." 3 Such is indeed the
case, for five years earlier the American Supreme Court had 3. It would be a different matter, of course, if there is a clear and
already declared: "It is beyond debate that freedom to engage in present danger of a substantive evil that would justify a
association for the advancement of beliefs and ideas is an limitation on such cherished freedoms. Reference has been
inseparable aspect of the "liberty" [embraced in] freedom of made to Gonzales v. Commission on Elections.9 As repression
speech."4 is permissible only when the danger of substantive evil is
present is explained by Justice Branders thus: ... the evil
Not long after, in 1965, Justice Douglas as; spokesman for the apprehended is to imminent that it may befall before there is
American Supreme Court could elaborate further on the scope opportunity for full discussion. If there be time to expose
of the right of association as including "the right to express one's through discussion the falsehood and fallacies, to avert the evil
attitudes or philosophies by membership in a group or by by the processes of education, the remedy to be applied is more
affiliation with it or by other lawful means, Association in that speech, not enforced silence. For him the apprehended evil must
context is a form of expression of opinion; and while it is not be "relatively serious." For "[prohibition] of free speech and
extremely included in the First Amendment its existence is assembly is a measure so stringent that it would be
necessary in making the express guarantees fully inappropriate as the means for averting a relatively trivial harm
meaningful."5 Thus is further vitalized freedom of expression to society." Justice Black would go further. He would require
which, for Justice Laurel, is at once the instrument" and the that the substantive evil be "extremely serious." Only thus may
guarantee and the bright consummate flower of all liberty"6 and, there be a realization of the ideal envisioned by Cardozo: "There
for Justice Cardozo, "the matrix, the indispensable condition of shall be no compromise of the freedom to think one's thoughts
nearly every other form of freedom." 7 and speak them, except at those extreme borders where thought
merges into action." It received its original formulation from
Holmes. Thus: "The question in every case is whether the words
2. It is in the light of the above fundamental postulates that I
used in such circumstances are of such a nature as to create a
find merit in the plea of petitioners to annul the challenged
clear and present danger that they will bring about the
provision. There is much to be said for the point emphatically
stressed by Senator Lorenzo M. Tañada, as amicus curiae, to the substantive evils that Congress has a right to prevent. It is a
effect that there is nothing unlawful in a candidate for delegate question of proximity and degree." " 10 The majority of the
Court would find the existence of a clear and present danger of
to the Convention representing or allowing himself to be
debasing the electoral process. With due respect, I find myself
represented as such of any political party or any other
unable to share such a view.
The assumption would, appear to be that there is a clear and very foundation of constitutional government." 11 It is to carry
present danger of a grave substantive evil of partisanship this essential process one step farther to recognize and to
running riot unless political parties are thus restrained. There implement the right of every political party or group to select
would be a sacrifice then of the national interest involved. The the candidates who, by their election, could translate into
Convention might not be able to live up to the high hopes actuality their hopes for the fundamental law that the times
entertained for an improvement of the fundamental law. It demand. Moreover, is it not in keeping with the rights to
would appear though that what prompted such a ban is to assure intellectual freedom so sedulously safeguarded by the
that the present majority party would not continue to play its Constitution to remove all obstacles to organized civic groups
dominant role in the political life of the nation. The thought is making their influence felt in the task of constitution framing,
entertained that otherwise, we will not have a Convention truly the result of which has momentuous implications for the nation?
responsive to the needs of the hour and of the future insofar as What is decisive of this aspect of the matter is not the character
they may be anticipated. of the association or organized group as such but the essentially
political activity thus carried out.
To my mind, this is to lose sight of the fact that in the national
elections of 1946, 1953, 1961 and 1965, the presidency was This is not to deny the wide latitude as to the choice of means
won by the opposition candidate. Moreover, in national vested in Congress to attain a desirable goal. Nor can it be
elections for senators alone, that of 1951, to mention only one successfully argued that the judiciary should display reluctance
instance, saw a complete sweep of the field by the then minority in extending sympathy and understanding to such legislative
party. It would be unjustifiable, so I am led to believe to assume determination. This is merely to stress that however worthwhile
that inevitably the prevailing dominant political party would the objective, the Constitution must still be paid deference.
continue its ascendancy in the coming Convention. Moreover, it may not be altogether unrealistic to consider the
practical effects of the ban as thus worded as not lacking in
Then, too, the result of the plebiscite in the two proposed effectivity insofar as civic, religious, professional or other
amendments in 1967 indicate unmistakably that the people can, organizations or organized group is concerned, but not
if so minded, make their wishes prevail. There is thus no necessarily so in the case of political party, political group or
assurance that the mere identification with party labels would political committee. There is the commendable admission by
automatically insure the success of a candidacy. Even if it be Senator Tolentino, appearing as amicus curiae, that the political
assumed that to guard against the evils of party spirit carried to leaders of stature, in their individual capacity, could continue to
excess, such a ban is called for, still no such danger is presented assert their influence. It could very well happen, then, in not a
by allowing civil, professional or any other organization or few cases, assuming the strength of political parties, that a
organized group of whatever nature to field its own candidates candidate thus favored is sure of emerging the victor. What is
or give aid or support, directly or indirectly material or thus sought to be accomplished to guard against the evil of party
otherwise, to anyone running for the Convention. From such a spirit prevailing could very well be doomed to futility. The high
source, no such misgivings or apprehension need arise. Nor it hopes entertained by the articulate and vocal groups of young
the fear that organizations could hastily be assembled or put up people, intellectuals and workers, may not be realized. The
to camouflage their true colors as satellites of the political result would be that this unorthodox and novel provision could
parties be valid. The electorate can see through such schemes assume the character of a tease, an illusion like a munificent
and can emphatically register its reaction. There is, moreover, bequest in a pauper's will.
the further safeguard that whatever work the Convention may
propose is ultimately subject to popular ratification. If such an appraisal is not unjustifiably tinged with pessimism,
then, to my mind, a radical approach to a problem possibly
For me then the danger of a substantive evil is neither clear nor tainted with constitutional infirmity cannot hurdle the judicial
present. What causes me grave concern is that to guard against test as to its validity. It is one thing to encourage a fresh and
such undesirable eventuality, which may not even come to pass, untried solution to a problem of gravity when the probability of
a flagrant disregard of what the Constitution ordains is its success may be assumed. It is an entirely different matter to
minimized. A desirable end cannot be coerced by cut down the exercise of what otherwise are undeniable
unconstitutional means. constitutional rights, when as in this case, the outcome might
belie expectations. Considering the well-settled principle that
even though the governmental process be legitimate and
4. It is not easy to yield assent to the proposition that on a matter
substantial, they cannot be pursued by means that broadly stifle
so essentially political as the amendment or revision of an
fundamental personal liberties, if the end can be narrowly
existing Constitution, political parties or political groups are to
be denied the opportunity of launching the candidacy of their achieved, I am far from being persuaded that to preclude
choice. Well has it been said by Chief Justice Hughes: "The political parties or other groups or associations from lending aid
and support to the candidates of men in whom they can repose
greater the importance of safeguarding the community from
their trust is consistent with the constitutional rights of freedom
incitements to the overthrow of our institutions by force and
of association and freedom of expression. Here, the danger of
violence, the more imperative is the need to preserve inviolate
overbreadth, so clear and manifest as to be offensive to
the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political constitutional standards, magnified by the probability that the
discussion, to the end that government may be responsive to the result would be the failure and not success of the statutory
scheme, cautions against the affixing of the imprimatur of
will of the people and that changes, if desired, may be obtained
judicial approval to the challenged provision.
by peaceful means. Therein lies the security of the Republic, the
5. Necessarily then, from this mode of viewing the matter, it Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
would follow that the holding of this Court in Gonzales v.
Comelec 12 does not compel the conclusion reached by the BARREDO, J., concurring and dissenting:
majority sustaining the validity of this challenged provision.
What survived the test of constitutional validity in that case,
Without prejudice to a more extended opinion, I vote, in
with the Court unanimous in its opinion, is the prohibition for
concurrence with the majority, to sustain the validity of the
any political party, political committee or political group to
provisions of Republic Act 6132 impugned by petitioners in
nominate candidates for any elective public office voted for at these cases, except Section 4 and the portion of Section 8(a)
large earlier than 150 days immediately preceding election and referring to political parties. As regards Section 4, I reiterate my
for any other public office earlier than 90 days immediately
separate opinion in the cases of Subido and others. (G.R. Nos.
preceding such election. 13 A corollary to the above limitation,
L-32436 and L-32439) With respect to Section 8(a), I hold that
the provision making it unlawful for any person, whether or not
the considerations which take the restraint on the freedoms of
a voter or candidate, or for any group or association of persons,
association, assembly and speech involved in the ban on
whether or not a political party or political committee, to engage political parties to nominate and support their own candidates,
in an election campaign or partisan political activity except reasonable and within the limits of the Constitution do not
during the above periods successfully hurdled, the
obtain when it comes to civic or non-political organizations. As
constitutional test, although the restrictions as to the making of
I see it, the said ban, insofar as civic or non-political
speeches, announcements or commentaries or holding
organizations are concerned, is a deceptive device to preserve
interviews for or against the election of any party or candidate
the built-in advantages of political parties while at the same
for public office or the publishing or distributing of campaign time crippling completely the other kinds of associations. The
literature or materials or the solicitation or undertaking any only way to accomplish the purported objective of the law of
campaign or propaganda for or against any candidate or party,
equalizing the forces that will campaign in behalf of the
directly or indirectly, survived by the narrow margin of one
candidates to the constitutional convention is to maintain said
vote, four members of this Court unable to discern any
ban only as against political parties, for after all, only the
constitutional infirmity as against the free speech guarantee, activities and manners of operation of these parties and/or some
thus resulting in failing to muster the necessary two-thirds of their members have made necessary the imposition thereof.
majority for a declaration of invalidity. Insofar as election
Under the resulting set up embodied in the provision in
campaign or partisan political activity would limit or restrict the
question, the individual candidates who have never had any
formation, of organizations, associations, clubs, committees or
political party connections or very little of it would be at an
other groups of persons for the purpose of soliciting votes or
obvious disadvantage unless they are allowed to seek and use
undertaking any campaign or propaganda for or against a party the aid of civic organizations. Neither the elaborate provisions
or candidate or, the giving, soliciting, or receiving a of Republic Act 6132 regarding methods of campaign nor its
contribution for election campaign purposes, either directly or
other provisions intended to minimize the participation of
indirectly as well as the holding of political conventions,
political parties in the electorate processes of voting, counting
caucuses, conferences, meetings, rallies, parades or other
of the votes and canvassing of the results can overcome the
similar assemblies, with a similar and in view, only five
advantages of candidates more or less connected with political
members of this Court, a minority thereof voted, for their parties, particularly the major and established ones, as long as
unconstitutionality. What emerges clearly, then, is that definite the right to form other associations and the right of these
acts short of preventing the political parties from the choice of
associations to campaign for their candidates are denied
their candidates and thereafter working for them in effect were
considering particularly the shortness of the time that is left
considered by this Court as not violative of the constitutional
between now and election day.
freedoms of speech, of press, of assembly and of association.
The issues involved in the coming elections are grave and
The challenged provision in these two petitions, however, goes
fundamental ones that are bound to affect the lives, rights and
much farther. Political parties or any other organization or
liberties of all the people of this country most effectively,
organized group are precluded from selecting and supporting
pervasively and permanently. The only insurance of the people
candidates for delegates to the Constitutional Convention. To against political parties which may be inclined towards the
my mind, this is to enter a forbidden domain, Congress Establishment and the status quo is to organize themselves to
trespassing on a field hitherto rightfully assumed to be within
gain much needed strength and effectivity. To deny them this
the sphere of liberty. Thus, I am unable to conclude that our
right is to stifle the people's only opportunity for change.
previous decision in Gonzales v. Commission on Elections
which already was indicative of the cautious and hesitant
judicial approach to lending its approval to what otherwise are It is axiomatic that issues, no matter how valid, if not related to
invasions of vital constitutional safeguards to freedoms of particular candidates in an organized way, similarly as in the
belief, of expression, and of association lends support to the use of platforms by political parties, cannot have any chance of
decision reached by the majority insofar as this challenged support and final adoption. Both men and issues are important,
provision is concerned. but unrelated to each other, each of them alone is insignificant,
and the only way to relate them is by organization. Precisely
because the issues in this election of candidates are of
Hence my inability to subscribe in its entirety to the opinion of paramount importance second to none, it is imperative that all
the Court. I am authorized to state that the Chief Justice is in
of the freedoms enshrined in the constitution should have the
agreement with the views herein expressed.
ampliest recognition for those who are minded to actively battle
for them and any attempt to curtail them would endanger the 2 The Constitution provides: "The right to form associations or
very purposes for which a new constitutional convention has societies for purposes not contrary to law shall not be abridged."
been conceived. Art. III, Sec. 1, par. 6.
3 Douglas, The Right of Association, 63 Col. Law Rev. 1363
Consistently with my separate opinion in the case of Gonzales (1963).
and Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969 4 NAACP v. Alabama ex rel. Patterson, 357 US 449, 460 (1958)
and for the reasons therein stated, I maintain that the right of per Harlan, J. Cf. Bates v. Little Rock, 361 US 516 (1960);
suffrage which is the cornerstone of any democracy like ours is Shelton v. Tucker, 364 US 479. (1960); Louisiana ex rel.
meaningless when the right to campaign in any election therein Gremillon v. NAACP, 366 US. 293 (1961); Communist Party
is unreasonably and unnecessarily curtailed, restrained or v. Subversive Activities Control Board, 367 US 1 (1961);
hampered, as is being done under the statute in dispute. Scales v. United States, 367 US 203 (1961); NAACP v. Button,
371 US 415 (1963); Gibson v. Florida Legislative Investigation,
Comm., 372 US 539 (1963); Brotherhood v. Virginia ex rel.
It is, of course, understood that this opinion is based on my
considered view, contrary to that of the majority, that as Section State Bar 377 US 1 (1964); NAACP v. Alabama, 377 US 288
8(a) stands and taking into account its genesis, the ban against (1964).
5 Griswold v. Connecticut, 381 US 479, 483 (1965). In
political parties is separable from that against other associations
Elfbrandt v. Russel, 384 US 11, 18 (1966) he spoke of this right
within the contemplation of Section 21 of the Act which
as a "cherished freedom." Cf. Keyishan v. Board of Regents,
expressly refers to the separability of the application thereof to
385 US 589 (1967).
any "persons, groups or circumstances."
6 Planas v. Gil, 67 Phil. 62 (1939), Justice Laurel quoting
Wendell Philipps.
I reserve my right to expand this explanation of my vote in the 7 Palko v. Connecticut, 302 US 319, 323 (1937).
next few days. 8 Section 8(a), Republic Act No. 6132 (1970).
9 L-27833, April 18, 1969, 27 SCRA 835.
# Footnotes 10 Ibid., pp. 859-860.
11 De Jonge v. Oregon, 299 US 353, 365 (1937).
1 Sec. 1 of Res. No. 4. 12 L-27833, April 18, 1969, 27 SCRA -835.
2 Sec. 3, Res. No. 4. 13 Sec. 50(a) of Republic Act 4880 (1967).
3 Sec. 22, R.A. No. 6132.
4 Abelardo Subido vs. Comelec, in re validity of Sec. 4 and Sec.
8(a) par. 2, R.A. 6132, G.R. No. L-32436, and In the matter of
the petition for declaratory relief re validity and
constitutionality of Sec. 4, R.A. 6132, Hon. Guardson Lood,
Judge, CFI, Pasig, Rizal et al., petitioners, G.R. No. L-32439,
Sept. 9, 1970.
5 Sec. 5, Art. VI, Constitution.
6 Macias et al. vs. Comelec, G. R. No. L-18684, Sept. 14, 1961..
7 People vs. Vera, 65 Phil. 56; People vs. Solon, G.R. No. L-
14864, Nov. 23, 1960.
8 See Gonzales vs. Comelec, L-27833, April 18, 1969; Vol. 27,
SCRA, p. 835, 858 et seq.; Justice Douglas in Elfbrandt v.
Russel, 384 US 11, 18-19, 1966.
9 27 SCRA, pp. 860-861.
10 27 SCRA, p. 865.
11 27 SCRA, p. 869.
12 27 SCRA, pp. 864-865, 868.
13 27 SCRA, pp. 869-870.
14 27 SCRA, p. 873.
15 27 SCRA, p. 872.
16 See his sponsorship speech of July 20, 1970.
17 84 Phil. 847, 852.
18 See his sponsorship speech on July 20, 1970.
19 See Justice Castro's separate opinion in Gonzales vs.
Comelec, supra, 27 SCRA, pp. 898-899 citing American
Communications Association vs. Douds, 339 U.S. 383, 94 L.
Ed., 925, 9437.
20 Pp. 4-5, 12, Answer in L-32432.
DAVIDE, JR., J.: The Delfin Petition further alleged that the provisions
sought to be amended are Sections 4 and 7 of Article
VI,[7] Section 4 of Article VII,[8] and Section 8 of Article X[9] of
The heart of this controversy brought to us by way of a
the Constitution. Attached to the petition is a copy of a Petition
petition for prohibition under Rule 65 of the Rules of Court is
for Initiative on the 1987 Constitution[10] embodying the
the right of the people to directly propose amendments to the
proposed amendments which consist in the deletion from the
Constitution through the system of initiative under Section 2 of
aforecited sections of the provisions concerning term limits, and
Article XVII of the 1987 Constitution. Undoubtedly, this
with the following proposition:
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 DO YOU APPROVE OF LIFTING THE TERM LIMITS OF
Constitutional Commission itself, through the original ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING
proponent[1] and the main sponsor[2] of the proposed Article on FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI,
Amendments or Revision of the Constitution, characterized this SECTION 4 OF ARTICLE VII, AND SECTION 8 OF
system as innovative.[3] Indeed it is, for both under the 1935 and ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
1973 Constitutions, only two methods of proposing
amendments to, or revision of, the Constitution were According to Delfin, the said Petition for Initiative will
recognized, viz., (1) by Congress upon a vote of three-fourths first be submitted to the people, and after it is signed by at least
of all its members and (2) by a constitutional convention. [4] For twelve per cent of the total number of registered voters in the
this and the other reasons hereafter discussed, we resolved to country it will be formally filed with the COMELEC.
give due course to this petition.
Upon the filing of the Delfin Petition, which was forthwith
On 6 December 1996, private respondent Atty. Jesus S. given the number UND 96-037 (INITIATIVE), the
Delfin filed with public respondent Commission on Elections COMELEC, through its Chairman, issued an Order[11] (a)
(hereafter, COMELEC) a Petition to Amend the Constitution, directing Delfin to cause the publication of the petition, together
to Lift Term Limits of Elective Officials, by Peoples Initiative with the attached Petition for Initiative on the 1987 Constitution
(hereafter, Delfin Petition)[5] wherein Delfin asked the (including the proposal, proposed constitutional amendment,
COMELEC for an order and the signature form), and the notice of hearing in three (3)
daily newspapers of general circulation at his own expense not
1. Fixing the time and dates for signature gathering later than 9 December 1996; and (b) setting the case for hearing
all over the country; on 12 December 1996 at 10:00 a.m.
2. Causing the necessary publications of said Order At the hearing of the Delfin Petition on 12 December
and the attached Petition for Initiative on the 1996, the following appeared: Delfin and Atty. Pete Q. Quadra;
1987 Constitution, in newspapers of general and representatives of the Peoples Initiative for Reforms,
local circulation; Modernization and Action (PIRMA); intervenor-oppositor
3. Instructing Municipal Election Registrars in all Senator Raul S. Roco, together with his two other lawyers; and
Regions of the Philippines, to assist Petitioners representatives of, or counsel for, the Integrated Bar of the
and volunteers, in establishing signing stations at Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon
(DIK), Public Interest Law Center, and Laban ng To justify their recourse to us via the special civil action
Demokratikong Pilipino (LABAN).[12] Senator Roco, on that for prohibition, the petitioners allege that in the event the
same day, filed a Motion to Dismiss the Delfin Petition on the COMELEC grants the Delfin Petition, the peoples initiative
ground that it is not the initiatory petition properly cognizable spearheaded by PIRMA would entail expenses to the national
by the COMELEC. treasury for general re-registration of voters amounting to at
least P180 million, not to mention the millions of additional
After hearing their arguments, the COMELEC directed pesos in expenses which would be incurred in the conduct of
Delfin and the oppositors to file their memoranda and/or the initiative itself. Hence, the transcendental importance to the
oppositions/memoranda within five days.[13] public and the nation of the issues raised demands that this
On 18 December 1996, the petitioners herein -- Senator petition for prohibition be settled promptly and definitely,
Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel brushing aside technicalities of procedure and calling for the
Ongpin -- filed this special civil action for prohibition raising admission of a taxpayers and legislators suit.[14] Besides, there
the following arguments: is no other plain, speedy, and adequate remedy in the ordinary
course of law.
(1) The constitutional provision on peoples initiative to amend On 19 December 1996, this Court (a) required the
the Constitution can only be implemented by law to be passed respondents to comment on the petition within a non-extendible
by Congress. No such law has been passed; in fact, Senate Bill period of ten days from notice; and (b) issued a temporary
No. 1290 entitled An Act Prescribing and Regulating restraining order, effective immediately and continuing until
Constitutional Amendments by Peoples Initiative,which further orders, enjoining public respondent COMELEC from
petitioner Senator Santiago filed on 24 November 1995, is still proceeding with the Delfin Petition, and private respondents
pending before the Senate Committee on Constitutional Alberto and Carmen Pedrosa from conducting a signature drive
Amendments. for peoples initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty
(2) It is true that R.A. No. 6735 provides for three systems of
Quadra, filed their Comment[15] on the petition. They argue
initiative, namely, initiative on the Constitution, on statutes, and
on local legislation. However, it failed to provide any subtitle therein that:
on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and 1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES
Subtitle III. This deliberate omission indicates that the matter of TO THE NATIONAL TREASURY FOR GENERAL
peoples initiative to amend the Constitution was left to some REGISTRATION OF VOTERS AMOUNTING TO AT
future law. Former Senator Arturo Tolentino stressed this LEAST PESOS: ONE HUNDRED EIGHTY MILLION
deficiency in the law in his privilege speech delivered before (P180,000,000.00) IF THE COMELEC GRANTS THE
the Senate in 1994: There is not a single word in that law which PETITION FILED BY RESPONDENT DELFIN BEFORE
can be considered as implementing [the provision on THE COMELEC.
constitutional initiative]. Such implementing provisions have
been obviously left to a separate law. 2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE
NATIONAL GOVERNMENT IF THE COMELEC GRANTS
(3) Republic Act No. 6735 provides for the effectivity of the THE PETITION OF RESPONDENT DELFIN. ALL
law after publication in print media. This indicates that the Act EXPENSES IN THE SIGNATURE GATHERING ARE ALL
covers only laws and not constitutional amendments because FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
the latter take effect only upon ratification and not after VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES
publication. AND EXPENDITURES SUBMITTED TO THE
COMELEC. THE ESTIMATED COST OF THE DAILY PER
DIEM OF THE SUPERVISING SCHOOL TEACHERS IN
(4) COMELEC Resolution No. 2300, adopted on 16 January
THE SIGNATURE GATHERING TO BE DEPOSITED and
1991 to govern the conduct of initiative on the Constitution and
TO BE PAID BY DELFIN AND HIS VOLUNTEERS
initiative and referendum on national and local laws, is ultra
vires insofar as initiative on amendments to the Constitution is IS P2,571, 200.00;
concerned, since the COMELEC has no power to provide rules
and regulations for the exercise of the right of initiative to 3. THE PENDING PETITION BEFORE THE COMELEC IS
amend the Constitution. Only Congress is authorized by the ONLY ON THE SIGNATURE GATHERING WHICH BY
Constitution to pass the implementing law. LAW COMELEC IS DUTY BOUND TO SUPERVISE
CLOSELY PURSUANT TO ITS INITIATORY
(5)The peoples initiative is limited to amendments to the JURISDICTION UPHELD BY THE HONORABLE COURT
IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE
Constitution, not to revision thereof. Extending or lifting of
CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS.
term limits constitutes a revision and is, therefore, outside the
COMELEC, ET AL. G.R. NO. 125416;
power of the peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples 4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS
THE ENABLING LAW IMPLEMENTING THE POWER OF
initiative; neither the COMELEC nor any other government
PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO
department, agency, or office has realigned funds for the
THE CONSTITUTION. SENATOR DEFENSOR-
purpose.
SANTIAGOS SENATE BILL NO. 1290 IS A DUPLICATION Constitution, which grants the COMELEC the power to enforce
OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT and administer all laws and regulations relative to the conduct
NO. 6735; of an election, plebiscite, initiative, referendum, and recall; and
(b) Section 20 of R.A. 6735, which empowers the COMELEC
5. COMELEC RESOLUTION NO. 2300 PROMULGATED to promulgate such rules and regulations as may be necessary
ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 to carry out the purposes of the Act.
WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE (4) The proposed initiative does not involve a revision of, but
OF SUBIC BAY METROPOLITAN AUTHORITY VS. mere amendment to, the Constitution because it seeks to alter
COMELEC, ET AL. G.R. NO. 125416 WHERE THE only a few specific provisions of the Constitution, or more
HONORABLE COURT SAID: THE COMMISSION ON specifically, only those which lay term limits. It does not seek
ELECTIONS CAN DO NO LESS BY SEASONABLY AND to reexamine or overhaul the entire document.
JUDICIOUSLY PROMULGATING GUIDELINES AND
RULES FOR BOTH NATIONAL AND LOCAL USE, IN As to the public expenditures for registration of voters,
IMPLEMENTING OF THESE LAWS. Delfin considers petitioners estimate of P180 million as
unreliable, for only the COMELEC can give the exact
6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE figure. Besides, if there will be a plebiscite it will be
BILL NO. 1290 CONTAINS A PROVISION DELEGATING simultaneous with the 1997 Barangay Elections. In any event,
TO THE COMELEC THE POWER TO PROMULGATE fund requirements for initiative will be a priority government
SUCH RULES AND REGULATIONS AS MAY BE expense because it will be for the exercise of the sovereign
NECESSARY TO CARRY OUT THE PURPOSES OF THIS power of the people.
ACT. (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E,
PETITION); In the Comment[17] for the public respondent COMELEC,
filed also on 2 January 1997, the Office of the Solicitor General
contends that:
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 (1) R.A. No. 6735 deals with, inter alia, peoples initiative to
CONSTITUTION. IT IS ONLY AN amend the Constitution. Its Section 2 on Statement of Policy
AMENDMENT. AMENDMENT ENVISAGES AN explicitly affirms, recognizes, and guarantees that power; and
ALTERATION OF ONE OR A FEW SPECIFIC its Section 3, which enumerates the three systems of initiative,
PROVISIONS OF THE CONSTITUTION. REVISION includes initiative on the Constitution and defines the same as
CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE the power to propose amendments to the Constitution.
DOCUMENT TO DETERMINE HOW AND TO WHAT Likewise, its Section 5 repeatedly mentions initiative on the
EXTENT IT SHOULD BE ALTERED. (PP. 412-413, 2ND. Constitution.
ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G.
BERNAS, S.J.). (2) A separate subtitle on initiative on the Constitution is not
necessary in R.A. No. 6735 because, being national in scope,
Also on 2 January 1997, private respondent Delfin filed in that system of initiative is deemed included in the subtitle on
his own behalf a Comment[16] which starts off with an assertion National Initiative and Referendum; and Senator Tolentino
that the instant petition is a knee-jerk reaction to a draft Petition simply overlooked pertinent provisions of the law when he
for Initiative on the 1987 Constitution ... which is not formally claimed that nothing therein was provided for initiative on the
filed yet. What he filed on 6 December 1996 was an Initiatory Constitution.
Pleading or Initiatory Petition, which was legally necessary to
start the signature campaign to amend the Constitution or to put (3) Senate Bill No. 1290 is neither a competent nor a material
the movement to gather signatures under COMELEC power proof that R.A. No. 6735 does not deal with initiative on the
and function. On the substantive allegations of the petitioners, Constitution.
Delfin maintains as follows:
(4) Extension of term limits of elected officials constitutes a
(1) Contrary to the claim of the petitioners, there is a law, R.A. mere amendment to the Constitution, not a revision thereof.
No. 6735, which governs the conduct of initiative to amend the
Constitution. The absence therein of a subtitle for such initiative (5) COMELEC Resolution No. 2300 was validly issued under
is not fatal, since subtitles are not requirements for the validity Section 20 of R.A. No. 6735 and under the Omnibus Election
or sufficiency of laws. Code. The rule-making power of the COMELEC to implement
the provisions of R.A. No. 6735 was in fact upheld by this Court
(2) Section 9(b) of R.A. No. 6735 specifically provides that the in Subic Bay Metropolitan Authority vs. COMELEC .
proposition in an initiative to amend the Constitution approved
by the majority of the votes cast in the plebiscite shall become On 14 January 1997, this Court (a) confirmed nunc pro
effective as of the day of the plebiscite. tunc the temporary restraining order; (b) noted the
aforementioned Comments and the Motion to Lift Temporary
(3) The claim that COMELEC Resolution No. 2300 is ultra Restraining Order filed by private respondents through Atty.
vires is contradicted by (a) Section 2, Article IX-C of the Quadra, as well as the latters Manifestation stating that he is the
counsel for private respondents Alberto and Carmen Pedrosa (5) The deficiency of R.A. No. 6735 cannot be rectified or
only and the Comment he filed was for the Pedrosas; and (c) remedied by COMELEC Resolution No. 2300, since the
granted the Motion for Intervention filed on 6 January 1997 by COMELEC is without authority to legislate the procedure for a
Senator Raul Roco and allowed him to file his Petition in peoples initiative under Section 2 of Article XVII of the
Intervention not later than 20 January 1997; and (d) set the case Constitution. That function exclusively pertains to
for hearing on 23 January 1997 at 9:30 a.m. Congress. Section 20 of R.A. No. 6735 does not constitute a
legal basis for the Resolution, as the former does not set a
On 17 January 1997, the Demokrasya-Ipagtanggol ang sufficient standard for a valid delegation of power.
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 On 20 January 1997, Senator Raul Roco filed his Petition
Petition in Intervention, which was later replaced by an in Intervention.[21] He avers that R.A. No. 6735 is the enabling
Amended Petition in Intervention wherein they contend that: law that implements the peoples 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
(1) The Delfin proposal does not involve a mere amendment to, even delivered a sponsorship speech thereon. He likewise
but a revision of, the Constitution because, in the words of Fr. submits that the COMELEC was empowered under Section 20
Joaquin Bernas, S.J.,[18] it would involve a change from a of that law to promulgate COMELEC Resolution No. 2300.
political philosophy that rejects unlimited tenure to one that Nevertheless, he contends that the respondent Commission is
accepts unlimited tenure; and although the change might appear without jurisdiction to take cognizance of the Delfin Petition
to be an isolated one, it can affect other provisions, such as, on and to order its publication because the said petition is not the
synchronization of elections and on the State policy of initiatory pleading contemplated under the Constitution,
guaranteeing equal access to opportunities for public service Republic Act No. 6735, and COMELEC Resolution No.
and prohibiting political dynasties.[19] A revision cannot be 2300.What vests jurisdiction upon the COMELEC in an
done by initiative which, by express provision of Section 2 of initiative on the Constitution is the filing of a petition for
Article XVII of the Constitution, is limited to amendments. initiative which is signed by the required number of registered
voters. He also submits that the proponents of a constitutional
(2) The prohibition against reelection of the President and the amendment cannot avail of the authority and resources of the
limits provided for all other national and local elective officials COMELEC to assist them is securing the required number of
are based on the philosophy of governance, to open up the signatures, as the COMELECs role in an initiative on the
political arena to as many as there are Filipinos qualified to Constitution is limited to the determination of the sufficiency of
handle the demands of leadership, to break the concentration of the initiative petition and the call and supervision of a
political and economic powers in the hands of a few, and to plebiscite, if warranted.
promote effective proper empowerment for participation in
policy and decision-making for the common good; hence, to On 20 January 1997, LABAN filed a Motion for Leave to
remove the term limits is to negate and nullify the noble vision Intervene.
of the 1987 Constitution. The following day, the IBP filed a Motion for Intervention
to which it attached a Petition in Intervention raising the
(3) The Delfin proposal runs counter to the purpose of initiative, following arguments:
particularly in a conflict-of-interest situation. Initiative is
intended as a fallback position that may be availed of by the (1) Congress has failed to enact an enabling law mandated
people only if they are dissatisfied with the performance of their under Section 2, Article XVII of the 1987 Constitution.
elective officials, but not as a premium for good
performance.[20]
(2) COMELEC Resolution No. 2300 cannot substitute for the
required implementing law on the initiative to amend the
(4) R.A. No. 6735 is deficient and inadequate in itself to be Constitution.
called the enabling law that implements the
peoples initiative on amendments to the Constitution. It fails to
state (a) the proper parties who may file the petition, (b) the (3) The Petition for Initiative suffers from a fatal defect in that
appropriate agency before whom the petition is to be filed, (c) it does not have the required number of signatures.
the contents of the petition, (d) the publication of the same, (e)
the ways and means of gathering the signatures of the voters (4) The petition seeks, in effect a revision of the Constitution,
nationwide and 3% per legislative district, (f) the proper parties which can be proposed only by Congress or a constitutional
who may oppose or question the veracity of the signatures, (g) convention.[22]
the role of the COMELEC in the verification of the signatures
and the sufficiency of the petition, (h) the appeal from any On 21 January 1997, we promulgated a Resolution (a)
decision of the COMELEC, (I) the holding of a plebiscite, granting the Motions for Intervention filed by the DIK and
and (g) the appropriation of funds for such peoples MABINI and by the IBP, as well as the Motion for Leave to
initiative. Accordingly, there being no enabling law, the Intervene filed by LABAN; (b) admitting the Amended Petition
COMELEC has no jurisdiction to hear Delfins 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 Committee on Suffrage and Electoral Reforms, of 6 June 1989
Intervention within a nonextendible period of three days from on House Bill No. 21505 and Senate Bill No. 17.
notice, and the respondents to comment thereon within a
nonextendible period of five days from receipt of the said Private respondents Alberto and Carmen Pedrosa filed
Petition in Intervention. their Consolidated Comments on the Petitions in Intervention
of Senator Roco, DIK and MABINI, and IBP.[23] The parties
At the hearing of the case on 23 January 1997, the parties thereafter filed, in due time, their separate memoranda. [24]
argued on the following pivotal issues, which the Court
formulated in light of the allegations and arguments raised in As we stated in the beginning, we resolved to give due
the pleadings so far filed: course to this special civil action.
For a more logical discussion of the formulated issues, we
1. Whether R.A. No. 6735, entitled An Act Providing for a shall first take up the fifth issue which appears to pose a
System of Initiative and Referendum and Appropriating Funds prejudicial procedural question.
Therefor, was intended to include or cover initiative on
amendments to the Constitution; and if so, whether the Act, as I
worded, adequately covers such initiative. THE INSTANT PETITION IS VIABLE DESPITE THE
2. Whether that portion of COMELEC Resolution No. 2300 (In PENDENCY IN THE COMELEC OF THE DELFIN
re: Rules and Regulations Governing the Conduct of Initiative PETITION.
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 Except for the petitioners and intervenor Roco, the parties
absence in the law of specific provisions on the conduct of such paid no serious attention to the fifth issue, i.e., whether it is
initiative. 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:
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 28. The Comelec has no jurisdiction to take cognizance of the
amendment to, the Constitution. 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
4. Whether the COMELEC can take cognizance of, or has petition for prohibition is the proper remedy.
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 29. The writ of prohibition is an extraordinary judicial writ
movement and volunteers in establishing signature stations; and issuing out of a court of superior jurisdiction and directed to an
(c) directing or causing the publication of, inter alia, the inferior court, for the purpose of preventing the inferior tribunal
unsigned proposed Petition for Initiative on the 1987 from usurping a jurisdiction with which it is not legally vested.
Constitution. (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
5. Whether it is proper for the Supreme Court to take questioned Comelec order. The consequent climate of legal
cognizance of the petition when there is a pending case before confusion and political instability begs for judicial
the COMELEC. statesmanship.
After hearing them on the issues, we required the parties 30. In the final analysis, when the system of constitutional law
to submit simultaneously their respective memoranda within is threatened by the political ambitions of man, only the
twenty days and requested intervenor Senator Roco to submit Supreme Court can save a nation in peril and uphold the
copies of the deliberations on House Bill No. 21505. paramount majesty of the Constitution.[25]
On 27 January 1997, LABAN filed its Petition in
Intervention wherein it adopts the allegations and arguments in It must be recalled that intervenor Roco filed with the
the main Petition. It further submits that the COMELEC should COMELEC a motion to dismiss the Delfin Petition on the
have dismissed the Delfin Petition for failure to state a sufficient ground that the COMELEC has no jurisdiction or authority to
cause of action and that the Commissions failure or refusal to entertain the petition.[26] The COMELEC made no ruling
do so constituted grave abuse of discretion amounting to lack of thereon evidently because after having heard the arguments of
jurisdiction. Delfin and the oppositors at the hearing on 12 December 1996,
it required them to submit within five days their memoranda or
On 28 January 1997, Senator Roco submitted copies of oppositions/memoranda.[27] Earlier, or specifically on 6
portions of both the Journal and the Record of the House of December 1996, it practically gave due course to the Delfin
Representatives relating to the deliberations of House Bill No. Petition by ordering Delfin to cause the publication of the
21505, as well as the transcripts of stenographic notes on the petition, together with the attached Petition for Initiative, the
proceedings of the Bicameral Conference Committee, signature form, and the notice of hearing; and by setting the case
for hearing. The COMELECs failure to act on Rocos motion to
dismiss and its insistence to hold on to the petition rendered ripe This provision is not self-executory. In his
and viable the instant petition under Section 2 of Rule 65 of the book,[29] Joaquin Bernas, a member of the 1986 Constitutional
Rules of Court, which provides: Commission, stated:
SEC. 2. Petition for prohibition. -- Where the proceedings of Without implementing legislation Section 2 cannot
any tribunal, corporation, board, or person, whether exercising operate. Thus, although this mode of amending the Constitution
functions judicial or ministerial, are without or in excess of its is a mode of amendment which bypasses congressional action,
or his jurisdiction, or with grave abuse of discretion, and there in the last analysis it still is dependent on congressional action.
is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file Bluntly stated, the right of the people to directly propose
a verified petition in the proper court alleging the facts with amendments to the Constitution through the system of initiative
certainty and praying that judgment be rendered commanding would remain entombed in the cold niche of the Constitution
the defendant to desist from further proceedings in the action or until Congress provides for its implementation. Stated
matter specified therein. otherwise, while the Constitution has recognized or granted that
right, the people cannot exercise it if Congress, for whatever
It must also be noted that intervenor Roco claims that the reason, does not provide for its implementation.
COMELEC has no jurisdiction over the Delfin Petition because
the said petition is not supported by the required minimum This system of initiative was originally included in
number of signatures of registered voters. LABAN also asserts Section 1 of the draft Article on Amendment or Revision
that the COMELECgravely abused its discretion in refusing to proposed by the Committee on Amendments and Transitory
dismiss the Delfin Petition, which does not contain the required Provisions of the 1986 Constitutional Commission in its
number of signatures. In light of these claims, the instant case Committee Report No. 7 (Proposed Resolution No.
may likewise be treated as a special civil action 332).[30] That section reads as follows:
for certiorari under Section I of Rule 65 of the Rules of Court.
SECTION 1. Any amendment to, or revision of, this
In any event, as correctly pointed out by intervenor Roco Constitution may be proposed:
in his Memorandum, this Court may brush aside technicalities
of procedure in cases of transcendental importance. As we
(a) by the National Assembly upon a vote of three-fourths of all
stated in Kilosbayan, Inc. v. Guingona, Jr.:[28]
its members; or
A partys standing before this Court is a procedural technicality (b) by a constitutional convention; or
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 (c) directly by the people themselves thru initiative as provided
because the transcendental importance to the public of these for in Article ____ Section ____ of the Constitution. [31]
cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure. After several interpellations, but before the period of
amendments, the Committee submitted a new formulation of
II the concept of initiative which it denominated as Section 2;
thus:
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM
OF INITIATIVE ON AMENDMENTS TO THE MR. SUAREZ. Thank you, Madam President. May we
CONSTITUTION, BUT IS, UNFORTUNATELY, respectfully call attention of the Members of the Commission
INADEQUATE TO COVER THAT SYSTEM. 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
Section 2 of Article XVII of the Constitution provides: initiative. This is now covered by Section 2 of the complete
committee report. With the permission of the Members, may I
quote Section 2:
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 The people may, after five years from the date of the last
registered voters, of which every legislative district must be plebiscite held, directly propose amendments to this
represented by at least three per centum of the registered voters Constitution thru initiative upon petition of at least ten percent
therein. No amendment under this section shall be authorized of the registered voters.
within five years following the ratification of this Constitution
nor oftener than once every five years thereafter. This completes the blanks appearing in the original Committee
Report No. 7.[32]
The Congress shall provide for the implementation of the
exercise of this right. 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 legal mandates and that therefore we require a great deal of
questions. circumspection in the drafting and in the amendments of the
Constitution?
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 MR. SUAREZ. That proposition is nondebatable.
carry this out. Do we understand, therefore, that we are leaving
this matter to the legislature? MS. AQUINO. Such that in order to underscore the primacy of
constituent power we have a separate article in the constitution
MR. SUAREZ. That is right, Madam President. that would specifically cover the process and the modes of
amending the Constitution?
FR. BERNAS. And do we also understand, therefore, that for
as long as the legislature does not pass the necessary MR. SUAREZ. That is right, Madam President.
implementing law on this, this will not operate?
MS. AQUINO. Therefore, is the sponsor inclined, as the
MR. SUAREZ. That matter was also taken up during the provisions are drafted now, to again concede to the legislature
committee hearing, especially with respect to the budget the process or the requirement of determining the mechanics of
appropriations which would have to be legislated so that the amending the Constitution by people's initiative?
plebiscite could be called. We deemed it best that this matter be
left to the legislature. The Gentleman is right. In any event, as MR. SUAREZ. The matter of implementing this could very
envisioned, no amendment through the power of initiative can well be placed in the hands of the National Assembly, not unless
be called until after five years from the date of the ratification we can incorporate into this provision the mechanics that would
of this Constitution. Therefore, the first amendment that could adequately cover all the conceivable situations.[33]
be proposed through the exercise of this initiative power would
be after five years. It is reasonably expected that within that
It was made clear during the interpellations that the
five-year period, the National Assembly can come up with the
aforementioned Section 2 is limited to proposals to AMEND --
appropriate rules governing the exercise of this power.
not to REVISE -- the Constitution; thus:
MS. AQUINO. And would the sponsor agree with me that in MR. SUAREZ.That is right. Those were the terms envisioned
the hierarchy of legal values, the Constitution is source of all in the Committee.[35]
Amendments to the proposed Section 2 were thereafter MR. ROMULO. But the procedures, including the
introduced by then Commissioner Hilario G. Davide, Jr., which determination of the proper form for submission to the people,
the Committee accepted. Thus: may be subject to legislation.
MR. DAVIDE. Thank you Madam President. I propose to MR. DAVIDE. As long as it will not destroy the substantive
substitute the entire Section 2 with the following: right to initiate. In other words, none of the procedures to be
proposed by the legislative body must diminish or impair the
xxx right conceded here.
MR. DAVIDE. Madam President, I have modified the proposed MR. ROMULO. In that provision of the Constitution can the
amendment after taking into account the modifications procedures which I have discussed be legislated?
submitted by the sponsor himself and the honorable
Commissioners Guingona, Monsod, Rama, Ople, de los Reyes MR. DAVIDE. Yes.[37]
and Romulo. The modified amendment in substitution of the
proposed Section 2 will now read as follows: "SECTION 2. -- Commissioner Davide also reaffirmed that his modified
AMENDMENTS TO THIS CONSTITUTION MAY amendment strictly confines initiative to AMENDMENTS to -
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE - NOT REVISION of -- the Constitution. Thus:
THROUGH INITIATIVE UPON A PETITION OF AT LEAST
TWELVE PERCENT OF THE TOTAL NUMBER OF
MR. DAVIDE. With pleasure, Madam President.
REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY
AT LEAST THREE PERCENT OF THE REGISTERED MR. MAAMBONG. My first question: Commissioner
VOTERS THEREOF. NO AMENDMENT UNDER THIS Davide's proposed amendment on line 1 refers to
SECTION SHALL BE AUTHORIZED WITHIN FIVE "amendment." Does it not cover the word "revision" as defined
YEARS FOLLOWING THE RATIFICATION OF THIS by Commissioner Padilla when he made the distinction between
CONSTITUTION NOR OFTENER THAN ONCE EVERY the words "amendments" and "revision"?
FIVE YEARS THEREAFTER.
MR. DAVIDE. No, it does not, because "amendments"
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE and "revision" should be covered by Section 1. So insofar as
FOR THE IMPLEMENTATION OF THE EXERCISE OF initiative is concerned, it can only relate to "amendments" not
THIS RIGHT. "revision."[38]
MR. SUAREZ. Madam President, considering that the Commissioner Davide further emphasized that the process
proposed amendment is reflective of the sense contained in of proposing amendments through initiative must be more
Section 2 of our completed Committee Report No. 7, we accept rigorous and difficult than the initiative on legislation. Thus:
the proposed amendment.[36]
MR. DAVIDE. A distinction has to be made that under this
The interpellations which ensued on the proposed proposal, what is involved is an amendment to the
modified amendment to Section 2 clearly showed that it was a Constitution. To amend a Constitution would ordinarily require
legislative act which must implement the exercise of the a proposal by the National Assembly by a vote of three-fourths;
right. Thus: 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
MR. ROMULO. Under Commissioner Davide's amendment, is is required, the import being that the process of amendment
it possible for the legislature to set forth certain procedures to
must be made more rigorous and difficult than probably
carry out the initiative...?
initiating an ordinary legislation or putting an end to a law
proposed by the National Assembly by way of a referendum. I
MR. DAVIDE. It can. cannot agree to reducing the requirement approved by the
Committee on the Legislative because it would require another
xxx voting by the Committee, and the voting as precisely based on
a requirement of 10 percent. Perhaps, I might present such a
MR. ROMULO. But the Commissioners amendment does not proposal, by way of an amendment, when the Commission shall
prevent the legislature from asking another body to set the take up the Article on the Legislative or on the National
proposition in proper form. Assembly on plenary sessions.[39]
MR. DAVIDE. The Commissioner is correct. In other words, The Davide modified amendments to Section 2 were
the implementation of this particular right would be subject to subjected to amendments, and the final version, which the
legislation, provided the legislature cannot determine anymore Commission approved by a vote of 31 in favor and 3 against,
the percentage of the requirement. reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as We agree that R.A. No. 6735 was, as its history reveals,
amended, reads as follows: "AMENDMENT TO THIS intended to cover initiative to propose amendments to the
CONSTITUTION MAY LIKEWISE BE DIRECTLY Constitution. The Act is a consolidation of House Bill No.
PROPOSED BY THE PEOPLE THROUGH INITIATIVE 21505 and Senate Bill No. 17. The former was prepared by the
UPON A PETITION OF AT LEAST TWELVE PERCENT OF Committee on Suffrage and Electoral Reforms of the House of
THE TOTAL NUMBER OF REGISTERED VOTERS, OF Representatives on the basis of two House Bills referred to
WHICH EVERY LEGISLATIVE DISTRICT MUST BE it, viz., (a) House Bill No. 497,[47] which dealt with the initiative
REPRESENTED BY AT LEAST THREE PERCENT OF THE and referendum mentioned in Sections 1 and 32 of Article VI
REGISTERED VOTERS THEREOF. NO AMENDMENT of the Constitution; and (b) House Bill No. 988,[48] which dealt
UNDER THIS SECTION SHALL BE AUTHORIZED with the subject matter of House Bill No. 497, as well as with
WITHIN FIVE YEARS FOLLOWING THE RATIFICATION initiative and referendum under Section 3 of Article X (Local
OF THIS CONSTITUTION NOR OFTENER THAN ONCE Government) and initiative provided for in Section 2 of Article
EVERY FIVE YEARS THEREAFTER. XVII of the Constitution. Senate Bill No. 17[49] solely dealt with
initiative and referendum concerning ordinances or resolutions
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE of local government units. The Bicameral Conference
FOR THE IMPLEMENTATION OF THE EXERCISE OF Committee consolidated Senate Bill No. 17 and House Bill No.
THIS RIGHT.[40] 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.
The entire proposed Article on Amendments or Revisions was
approved on second reading on 9 July 1986.[41] Thereafter, upon But is R.A. No. 6735 a full compliance with the power and
his motion for reconsideration, Commissioner Gascon was duty of Congress to provide for the implementation of the
allowed to introduce an amendment to Section 2 which, exercise of the right?
nevertheless, was withdrawn. In view thereof, the Article was
again approved on Second and Third Readings on 1 August A careful scrutiny of the Act yields a negative answer.
1986.[42]
First. Contrary to the assertion of public respondent
However, the Committee on Style recommended that the COMELEC, Section 2 of the Act does not suggest an initiative
approved Section 2 be amended by changing percent to per on amendments to the Constitution. The said section reads:
centum and thereof to therein and deleting the phrase by law in
the second paragraph so that said paragraph reads: The SECTION 2. Statement and Policy. -- The power of the people
Congress[43] shall provide for the implementation of the under a system of initiative and referendum to directly propose,
exercise of this right.[44] This amendment was approved and is enact, approve or reject, in whole or in part, the Constitution,
the text of the present second paragraph of Section 2. laws, ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this Act is
The conclusion then is inevitable that, indeed, the system hereby affirmed, recognized and guaranteed. (Underscoring
of initiative on the Constitution under Section 2 of Article XVII supplied).
of the Constitution is not self-executory.
Has Congress provided for the implementation of the The inclusion of the word Constitution therein was a delayed
exercise of this right? Those who answer the question in the afterthought. That word is neither germane nor relevant to said
affirmative, like the private respondents and intervenor Senator section, which exclusively relates to initiative and referendum
Roco, point to us R.A. No. 6735. on national laws and local laws, ordinances, and
resolutions. That section is silent as to amendments on the
There is, of course, no other better way for Congress to Constitution. As pointed out earlier, initiative on the
implement the exercise of the right than through the passage of Constitution is confined only to proposals to AMEND. The
a statute or legislative act. This is the essence or rationale of the people are not accorded the power to directly propose, enact,
last minute amendment by the Constitutional Commission to approve, or reject, in whole or in part, the Constitution through
substitute the last paragraph of Section 2 of Article XVII then the system of initiative. They can only do so with respect to
reading: laws, ordinances, or resolutions.
The Congress[45] shall by law provide for the implementation of The foregoing conclusion is further buttressed by the fact
the exercise of this right. 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
with
enact, approve or reject and in whole or in part. [52]
The Congress shall provide for the implementation of the Second. It is true that Section 3 (Definition of Terms) of
exercise of this right. the Act defines initiative on amendments to the Constitution
and mentions it as one of the three systems of initiative, and that
This substitute amendment was an investiture on Congress Section 5 (Requirements) restates the constitutional
of a power to provide for the rules implementing the exercise of requirements as to the percentage of the registered voters who
the right. The rules means the details on how [the right] is to be must submit the proposal. But unlike in the case of the other
carried out.[46] 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 xxx
the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be. It does not include, as There are three (3) systems of initiative, namely:
among the contents of the petition, the provisions of the
Constitution sought to be amended, in the case of initiative on
a.1 Initiative on the Constitution which refers to a petition
the Constitution. Said paragraph (c) reads in full as follows:
proposing amendments to the Constitution;
(c) The petition shall state the following: a.2 Initiative on Statutes which refers to a petition proposing to
enact a national legislation; and
c.1 contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
a.3 Initiative on local legislation which refers to a petition
proposing to enact a regional, provincial, city, municipal, or
c.2 the proposition; barangay law, resolution or ordinance. (Underscoring
supplied).
c.3 the reason or reasons therefor;
Hence, to complete the classification under subtitles there
c.4 that it is not one of the exceptions provided therein; should have been a subtitle on initiative on amendments to the
Constitution.[53]
c.5 signatures of the petitioners or registered voters; and A further examination of the Act even reveals that the
subtitling is not accurate. Provisions not germane to the subtitle
c.6 an abstract or summary proposition is not more than one on National Initiative and Referendum are placed therein, like
hundred (100) words which shall be legibly written or printed (1) paragraphs (b) and (c) of Section 9, which reads:
at the top of every page of the petition. (Underscoring supplied).
(b) The proposition in an initiative on the Constitution approved
The use of the clause proposed laws sought to be enacted, by the majority of the votes cast in the plebiscite shall become
approved or rejected, amended or repealed only strengthens the effective as to the day of the plebiscite.
conclusion that Section 2, quoted earlier, excludes initiative on
amendments to the Constitution. (c) A national or local initiative proposition approved by
Third. While the Act provides subtitles for National majority of the votes cast in an election called for the purpose
Initiative and Referendum (Subtitle II) and for Local Initiative shall become effective fifteen (15) days after certification and
and Referendum (Subtitle III), no subtitle is provided proclamation of the Commission. (Underscoring supplied).
for initiative on the Constitution. This conspicuous silence as to
the latter simply means that the main thrust of the Act is (2) that portion of Section 11 (Indirect Initiative) referring to
initiative and referendum on national and local laws. If indirect initiative with the legislative bodies of local
Congress intended R.A. No. 6735 to fully provide for the governments; thus:
implementation of the initiative on amendments to the
Constitution, it could have provided for a subtitle therefor, SEC. 11. Indirect Initiative. -- Any duly accredited peoples
considering that in the order of things, the primacy of interest, organization, as defined by law, may file a petition for indirect
or hierarchy of values, the right of the people to directly propose initiative with the House of Representatives, and other
amendments to the Constitution is far more important than the legislative bodies....
initiative on national and local laws.
We cannot accept the argument that the initiative on and (3) Section 12 on Appeal, since it applies to decisions of the
amendments to the Constitution is subsumed under the subtitle COMELEC on the findings of sufficiency or insufficiency of
on National Initiative and Referendum because it is national in the petition for initiative or referendum, which could be
scope. Our reading of Subtitle II (National Initiative and petitions for both national and local initiative and referendum.
Referendum) and Subtitle III (Local Initiative and Referendum)
Upon the other hand, Section 18 on Authority of Courts
leaves no room for doubt that the classification is not based on under subtitle III on Local Initiative and Referendum is
the scope of the initiative involved, but on misplaced,[54] since the provision therein applies to both
its nature and character. It is national initiative, if what is
national and local initiative and referendum. It reads:
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 SEC. 18. Authority of Courts. -- Nothing in this Act shall
resolution which only the legislative bodies of the governments prevent or preclude the proper courts from declaring null and
of the autonomous regions, provinces, cities, municipalities, void any proposition approved pursuant to this Act for violation
and barangays can pass. This classification of initiative of the Constitution or want of capacity of the local legislative
into national and local is actually based on Section 3 of the Act, body to enact the said measure.
which we quote for emphasis and clearer understanding:
Curiously, too, while R.A. No. 6735 exerted utmost
SEC. 3. Definition of terms -- diligence and care in providing for the details in the
implementation of initiative and referendum on national and Upon the other hand, as to initiative on amendments to the
local legislation thereby giving them special attention, it failed, Constitution, R.A. No. 6735, in all of its twenty-three sections,
rather intentionally, to do so on the system of initiative on merely (a) mentions, the word Constitution in Section 2; (b)
amendments to the Constitution. Anent the initiative on defines initiative on the Constitution and includes it in the
national legislation, the Act provides for the following: enumeration of the three systems of initiative in Section 3; (c)
speaks of plebiscite as the process by which the proposition in
(a) The required percentage of registered voters to sign the an initiative on the Constitution may be approved or rejected by
petition and the contents of the petition; 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.
(b) The conduct and date of the initiative;
There was, therefore, an obvious downgrading of the more
(c) The submission to the electorate of the proposition and the important or the paramount system of initiative. R.A. No. 6735
required number of votes for its approval; thus delivered a humiliating blow to the system of initiative on
amendments to the Constitution by merely paying it a reluctant
(d) The certification by the COMELEC of the approval of the lip service.[57]
proposition; The foregoing brings us to the conclusion that R.A. No.
6735 is incomplete, inadequate, or wanting in essential terms
(e) The publication of the approved proposition in the Official and conditions insofar as initiative on amendments to the
Gazette or in a newspaper of general circulation in the Constitution is concerned. Its lacunae on this substantive matter
Philippines; and are fatal and cannot be cured by empowering the COMELEC to
promulgate such rules and regulations as may be necessary to
(f) The effects of the approval or rejection of the proposition.[55] carry out the purposes of [the] Act.[58]
The rule is that what has been delegated, cannot be
As regards local initiative, the Act provides for the delegated or as expressed in a Latin maxim: potestas delegata
following: non delegari potest.[59] The recognized exceptions to the rule
are as follows:
(a) The preliminary requirement as to the number of signatures
of registered voters for the petition; (1) Delegation of tariff powers to the President under Section
28(2) of Article VI of the Constitution;
(b) The submission of the petition to the local legislative body
concerned; (2) Delegation of emergency powers to the President under
Section 23(2) of Article VI of the Constitution;
(c) The effect of the legislative bodys failure to favorably act
thereon, and the invocation of the power of initiative as a (3) Delegation to the people at large;
consequence thereof;
(4) Delegation to local governments; and
(d) The formulation of the proposition;
(5) Delegation to administrative bodies.[60]
(e) The period within which to gather the signatures;
Empowering the COMELEC, an administrative body
(f) The persons before whom the petition shall be signed; exercising quasi-judicial functions, to promulgate rules and
regulations is a form of delegation of legislative authority under
(g) The issuance of a certification by the COMELEC through no. 5 above. However, in every case of permissible delegation,
its official in the local government unit concerned as to whether there must be a showing that the delegation itself is valid. It is
the required number of signatures have been obtained; valid only if the law (a) is complete in itself, setting forth therein
the policy to be executed, carried out, or implemented by the
(h) The setting of a date by the COMELEC for the submission delegate; and (b) fixes a standard -- the limits of which are
of the proposition to the registered voters for their approval, sufficiently determinate and determinable -- to which the
which must be within the period specified therein; delegate must conform in the performance of his
functions.[61] A sufficient standard is one which defines
(i) The issuance of a certification of the result; 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
(j) The date of effectivity of the approved proposition;
effected.[62]
(k) The limitations on local initiative; and Insofar as initiative to propose amendments to the
Constitution is concerned, R.A. No. 6735 miserably failed to
(l) The limitations upon local legislative bodies.[56] satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.
III Procedure or under Resolution No. 2300, for which reason it did
not assign to the petition a docket number. Hence, the said
COMELEC RESOLUTION NO. 2300, INSOFAR petition was merely entered as UND,
AS IT PRESCRIBES RULES AND meaning, undocketed. That petition was nothing more than a
REGULATIONS ON THE CONDUCT OF mere scrap of paper, which should not have been dignified by
INITIATIVE ON AMENDMENTS TO THE the Order of 6 December 1996, the hearing on 12 December
CONSTITUTION, IS VOID. 1996, and the order directing Delfin and the oppositors to file
It logically follows that the COMELEC cannot validly their memoranda or oppositions. In so dignifying it, the
promulgate rules and regulations to implement the exercise of COMELEC acted without jurisdiction or with grave abuse of
the right of the people to directly propose amendments to the discretion and merely wasted its time, energy, and resources.
Constitution through the system of initiative. It does not have The foregoing considered, further discussion on the issue
that power under R.A. No. 6735. Reliance on the COMELECs of whether the proposal to lift the term limits of the elective
power under Section 2(1) of Article IX-C of the Constitution is national and local officials is an amendment to, and not
misplaced, for the laws and regulations referred to therein are a revision of, the Constitution is rendered unnecessary, if not
those promulgated by the COMELEC under (a) Section 3 of academic.
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.
CONCLUSION
IV
COMELEC ACTED WITHOUT JURISDICTION
This petition must then be granted, and the COMELEC
OR WITH GRAVE ABUSE OF DISCRETION IN
should be permanently enjoined from entertaining or taking
ENTERTAINING THE DELFIN PETITION.
cognizance of any petition for initiative on amendments on the
Even if it be conceded ex gratia that R.A. No. 6735 is a Constitution until a sufficient law shall have been validly
full compliance with the power of Congress to implement the enacted to provide for the implementation of the system.
right to initiate constitutional amendments, or that it has validly
We feel, however, that the system of initiative to propose
vested upon the COMELEC the power of subordinate
amendments to the Constitution should no longer be kept in the
legislation and that COMELEC Resolution No. 2300 is valid,
cold; it should be given flesh and blood, energy and
the COMELEC acted without jurisdiction or with grave abuse
strength. Congress should not tarry any longer in complying
of discretion in entertaining the Delfin Petition.
with the constitutional mandate to provide for the
Under Section 2 of Article XVII of the Constitution and implementation of the right of the people under that system.
Section 5(b) of R.A. No. 6735, a petition for initiative on the
WHEREFORE, judgment is hreby rendered
Constitution must be signed by at least 12% of the total number
of registered voters of which every legislative district is a) GRANTING the instant petition;
represented by at least 3% of the registered voters therein. The
Delfin Petition does not contain signatures of the required b) DECLARING R.A. No. 6735 inadequate to cover the
number of voters. Delfin himself admits that he has not yet system of initiative on amendments to the Constitution, and to
gathered signatures and that the purpose of his petition is have failed to provide sufficient standard for subordinate
primarily to obtain assistance in his drive to gather legislation;
signatures. Without the required signatures, the petition cannot c) DECLARING void those parts of Resolutions No. 2300
be deemed validly initiated. of the Commission on Elections prescribing rules and
The COMELEC acquires jurisdiction over a petition for regulations on the conduct of initiative or amendments to the
initiative only after its filing. The petition then is the initiatory Constitution; and
pleading. Nothing before its filing is cognizable by the d) ORDERING the Commission on Elections to forthwith
COMELEC, sitting en banc. The only participation of the DISMISS the DELFIN petition (UND-96-037).
COMELEC or its personnel before the filing of such petition
are (1) to prescribe the form of the petition;[63] (2) to issue The Temporary Restraining Order issued on 18 December
through its Election Records and Statistics Office a certificate 1996 is made permanent as against the Commission on
on the total number of registered voters in each legislative Elections, but is LIFTED against private respondents.
district;[64] (3) to assist, through its election registrars, in the
establishment of signature stations;[65] and (4) to verify, through Resolution on the matter of contempt is hereby reserved.
its election registrars, the signatures on the basis of the registry SO ORDERED.
list of voters, voters affidavits, and voters identification cards
used in the immediately preceding election.[66] Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan,
Hermosisima, Jr. and Torres Jr., JJ., concur.
Since the Delfin Petition is not the initiatory petition under Padilla, J., took no part; related to a co-petitioner and co-
R.A. No. 6735 and COMELEC Resolution No. 2300, it cannot counsel of the petitioners.
be entertained or given cognizance of by the COMELEC. The Melo and Mendoza, JJ., joins the separate, concurring
latter knew that the petition does not fall under any of the opinions of Justices Puno, Francisco and Panganiban.
actions or proceedings under the COMELEC Rules of
Puno, Vitug, , Francisco and Panganiban, JJ., has SEC. 8. The term of office of elective local officials, except
separate opinions. 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
[1]
not be considered as an interruption in the continuity
Commissioner Blas Ople. of his service for the full term for which he was
[2]
Commissioner Jose Suarez. elected.
[10]
[3]
I Record of the Constitutional Commission, 371, 378. Rollo, 19.
[11]
[4]
Section 1, Article XV of the 1935 Constitution and Section Annex B of Petition, Rollo, 25.
1(1), Article XVI of the 1973 Constitution. [12]
Order of 12 December 1996, Annex B-1 of Petition, Rollo,
[5]
Annex A of Petition, Rollo, 15. 27.
[13]
[6]
Later identified as the Peoples Initiative for Reforms, Id.
Modernization and Action, or PIRMA for brevity. [14]
Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v.
[7]
These sections read: COMELEC, 73 SCRA 333 [1976].
[15]
SEC. 4. The term of office of the Senators shall be six years and Rollo, 68.
shall commence, unless otherwise provided by law, at [16]
Rollo, 100.
noon on the thirtieth day of June next following their
[17]
election. Rollo, 130.
[18]
No Senator shall serve for more than two consecutive A Member of the 1986 Constitutional Commission.
terms. Voluntary renunciation of the office for any [19]
length of time shall not be considered as an Section 26, Article II, Constitution.
interruption in the continuity of his service for the full [20]
Citing Commissioner Ople of the Constitutional
term for which he was elected. Commission, I Record of the Constitutional
xxx Commission, 405.
[21]
SEC. 7. The Members of the House of Representatives shall be Rollo, 239.
elected for a term of three years which shall begin, [22]
Rollo, 304.
unless otherwise provided by law, at noon on the
[23]
thirtieth day of June next following their election. Rollo, 568.
[24]
No Member of the House of Representatives shall serve for These were submitted on the following dates:
more than three consecutive terms. Voluntary
(a) Private respondent Delfin - 31 January 1997 (Rollo, 429);
renunciation of the office for any length of time shall
(b) Private respondents Alberto and Carmen Pedrosa - 10
not be considered as an interruption in the continuity
February 1997 (Id., 446);
of his service for the full term for which he was
(c) Petitioners - 12 February 1997 (Id., 585);
elected.
(d) IBP - 12 February 1997 (Id., 476);
[8]
The section reads: (e) Senator Roco - 12 February 1997 (Id., 606);
(f) DIK and MABINI - 12 February 1997 (Id., 465);
SEC. 4. The President and the Vice-President shall be elected (g) COMELEC - 12 February 1997 (Id., 489);
by direct vote of the people for a term of six years
which shall begin at noon on the thirtieth day of June (h) LABAN - 13 February 1997 (Id., 553).
next following the day of the election and shall end at [25]
Rollo, 594.
noon of the same date six years thereafter. The
President shall not be eligible for any reelection. No [26]
Annex D of Rocos Motion for Intervention in this
person who has succeeded as President and has served case, Rollo, 184.
as such for more than four years shall be qualified for
[27]
election to the same office at any time. Rollo, 28.
[28]
No Vice-President shall serve for more than two successive 232 SCRA 110, 134 [1994].
terms. Voluntary renunciation of the office for any [29]
II The Constitution of the Republic of the Philippines, A
length of time shall not be considered as an Commentary 571 [1988].
interruption in the continuity of the service for the full
[30]
term for which he was elected. I Record of the Constitutional Commission 370-371.
[9] [31]
The section reads: Id., 371.
[32]
Id., 386.
[33] [53]
Id., 391-392. (Underscoring supplied for emphasis). It must be pointed out that Senate Bill No. 17 and House Bill
[34]
No. 21505, as approved on Third Reading, did not
Id., 386. contain any subtitles.
[35]
Id., 392. [54]
If some confusion attended the preparation of the subtitles
[36]
Id., 398-399. resulting in the leaving out of the more important and
paramount system of initiative on amendments to the
[37]
Id., 399. Underscoring supplied. Constitution, it was because there was in the Bicameral
[38] Conference Committee an initial agreement for the Senate panel
Id., 402-403.
to draft that portion on local initiative and for the House of
[39]
Id., 401-402. Representatives panel to draft that portion covering national
initiative and initiative on the Constitution; eventually,
[40]
Id., 410. however, the Members thereof agreed to leave the drafting of
[41]
Id., 412. the consolidated bill to their staff. Thus:
[42]
II Record of the Constitutional Commission 559-560. CHAIRMAN GONZALES.
[43]
The Congress originally appeared as The National ... All right, and we can agree, we can agree. So ang mangyayari
Assembly. The change came about as a logical dito, ang magiging basic nito, let us not discuss
consequence of the amended Committee Report No. anymore kung alin ang magiging basic bill, ano,
22 of the Committee on Legislative which whether it is the Senate Bill or whether it is the House
changed The National Assembly to "The Congress of Bill. Logically it should be ours sapagkat una iyong sa
the Philippines" in view of the approval of the amin, eh. It is one of the first bills approved by the
amendment to adopt the bicameral system (II Record Senate kaya ang number niyan, makikita mo, 17,
of the Constitutional Commission 102-105). The eh. Huwag na nating pag-usapan. Now, if you insist,
proposed new Article on the Legislative Department really iyong features ng national at
was, after various amendments approved on Second saka constitutional, okay. Pero gagawin na nating
and Third Readings on 9 October 1986 (Id., 702-703). consolidation of both bills. (TSN, proceedings of the
Bicameral Conference Committee on 6 June 1989
[44]
V Record of the Constitutional Commission 806. submitted by Nora, R, pp. I-4 - I-5).
[45]
See footnote No. 42. xxx
[46]
As stated by Commissioner Bernas in his interpellation of HON. ROCO. So how do we proceed from this? The staff will
Commissioner Suarez, footnote 28. consolidate.
[47]
Entitled "Initiative and Referendum Act of 1987, introduced HON. GONZALES. Gumawa lang ng isang draft. Submit it to
by then Congressmen Raul Roco, Raul del Mar and the Chairman, kami na ang bahalang magconsult sa
Narciso Monfort. aming mga members na kung okay,
[48]
Entitled An Act Implementing the Constitutional Provisions HON. ROCO. Within today?
on Initiative and Referendum and for Other Purposes,
introduced by Congressmen Salvador Escudero. HON. GONZALES. Within today and early
tomorrow. Hanggang Huwebes lang tayo, eh.
[49]
Entitled An Act Providing for a System of Initiative and
Referendum, and the Exceptions Therefrom, Whereby HON. AQUINO. Kinakailangang palusutin natin ito. Kung
People in Local Government Units Can Directly mabigyan tayo ng kopya bukas and you are not
Propose and Enact Resolutions and Ordinances or objecting naman kayo naman ganoon din.
Approve or Reject Any Ordinance or Resolution HON. ROCO. Editing na lang because on a physical
Passed By the Local Legislative Body, introduced by consolidation nga ito, eh. Yung mga provisions naman
Senators Gonzales, Romulo, Pimentel, Jr., and Lina, namin wala sa inyo. (TSN, proceedings of Bicameral
Jr. Conference Committee of 6 June 1989, submitted by
[50]
IV Record of the Senate, No. 143, pp. 1509-1510. E.S. Bongon, pp. III-4 - III-5).
[55]
[51]
VIII Journal and Record of the House of Representatives, Sec. 5(a & c), Sec. 8, Section 9(a).
957-961. [56]
Sections 13, 14, 15 and 16.
[52]
That section reads: [57]
It would thus appear that the Senates cautious approach in
Section 1. Statement of Policy. The power of the people under the implementation of the system of initiative as a mode of
a system of initiative and referendum to directly proposing amendments to the Constitution, as expressed by
propose and enact resolutions and ordinances or Senator Gonzales in the course of his sponsorship of Senate Bill
approve or reject, in whole or in part, any ordinance or No. 17 in the Bicameral Conference Committee meeting and in
resolution passed by any local legislative body upon his sponsorship of the Committees Report, might have
compliance with the requirements of this Act is hereby insidiously haunted the preparation of the consolidated version
affirmed, recognized and guaranteed.
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
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. I-2 to I-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, R.A. 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.
Republic of the Philippines Accountant and Auditor of the Convention be made
SUPREME COURT respondents. After the petition was so amended, the first
Manila appeared thru Senator Emmanuel Pelaez and the last two thru
Delegate Ramon Gonzales. All said respondents, thru counsel,
EN BANC resist petitioner's action.
G.R. No. L-34150 October 16, 1971 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
ARTURO M. TOLENTINO, petitioner,
counsel, their interests would be adequately protected already,
vs.
the Court had to limit the number of intervenors from the ranks
COMMISSION ON ELECTIONS, and THE CHIEF
of the delegates to the Convention who, more or less, have legal
ACCOUNTANT, THE AUDITOR, and THE
interest in the success of the respondents, and so, only Delegates
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 Ortega and Juan B. Borra, all
RAUL S. MANGLAPUS, JESUS G. BARRERA, PABLO S. distinguished lawyers in their own right, have been allowed to
TRILLANA III, VICTOR DE LA SERNA, MARCELO B. intervene jointly. The Court feels that with such an array of
FERNAN, JOSE Y. FERIA, LEONARDO SIGUION brilliant and dedicated counsel, all interests involved should be
REYNA, VICTOR F. ORTEGA, and JUAN V. duly and amply represented and protected. At any rate,
BORRA, Intervenors. notwithstanding that their corresponding motions for leave to
intervene or to appear as amicus curiae 1 have been denied, the
Arturo M. Tolentino in his own behalf. pleadings filed by the other delegates and some private parties,
the latter in representation of their minor children allegedly to
Ramon A. Gonzales for respondents Chief Accountant and be affected by the result of this case with the records and the
Auditor of the 1971 Constitutional Convention. Court acknowledges that they have not been without value as
materials in the extensive study that has been undertaken in this
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for case.
respondent Disbursing Officer of the 1971 Constitutional
Convention. The background facts are beyond dispute. The Constitutional
Convention of 1971 came into being by virtue of two
Intervenors in their own behalf. 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
BARREDO, J.
namely, Resolutions 2 and 4 of the joint sessions of Congress
held on March 16, 1967 and June 17, 1969 respectively. The
Petition for prohibition principally to restrain the respondent delegates to the said Convention were all elected under and by
Commission on Elections "from undertaking to hold a virtue of said resolutions and the implementing legislation
plebiscite on November 8, 1971," at which the proposed thereof, Republic Act 6132. The pertinent portions of
constitutional amendment "reducing the voting age" in Section Resolution No 2 read as follows:
1 of Article V of the Constitution of the Philippines to eighteen
years "shall be, submitted" for ratification by the people
SECTION 1. There is hereby called a
pursuant to Organic Resolution No. 1 of the Constitutional
convention to propose amendments to the
Convention of 1971, and the subsequent implementing
Constitution of the Philippines, to be
resolutions, by declaring said resolutions to be without the force
composed of two elective Delegates from
and effect of law in so far as they direct the holding of such
each representative district who shall have
plebiscite and by also declaring the acts of the respondent
the same qualifications as those required of
Commission (COMELEC) performed and to be done by it in
Members of the House of Representatives.
obedience to the aforesaid Convention resolutions to be null and
void, for being violative of the Constitution of the Philippines.
xxx xxx xxx
As a preliminary step, since the petition named as respondent
only the COMELEC, the Count required that copies thereof be SECTION 7. The amendments proposed by
served on the Solicitor General and the Constitutional the Convention shall be valid and considered
Convention, through its President, for such action as they may part of the Constitution when approved by a
deem proper to take. In due time, respondent COMELEC filed majority of the votes cast in an election at
its answer joining issues with petitioner. To further put things which they are submitted to the people for
in proper order, and considering that the fiscal officers of the their ratification pursuant to Article XV of the
Convention are indispensable parties in a proceeding of this Constitution.
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
Resolution No. 4 merely modified the number of delegates to savings or from its unexpended funds for the
represent the different cities and provinces fixed originally in expense of the advanced plebiscite; provided,
Resolution No 2. however that should there be no savings or
unexpended sums, the Delegates waive
After the election of the delegates held on November 10, 1970, P250.00 each or the equivalent of 2-1/2 days
the Convention held its inaugural session on June 1, 1971. Its per diem.
preliminary labors of election of officers, organization of
committees and other preparatory works over, as its first formal By a letter dated September 28, 1971, President Diosdado
proposal to amend the Constitution, its session which began on Macapagal, called upon respondent Comelec "to help the
September 27, 1971, or more accurately, at about 3:30 in the Convention implement (the above) resolution." The said letter
morning of September 28, 1971, the Convention approved reads:
Organic Resolution No. 1 reading thus: .
September 28, 1971
CC ORGANIC RESOLUTION NO. 1
The Commission on Elections Manila
A RESOLUTION AMENDING SECTION
ONE OF ARTICLE V OF THE Thru the Chairman
CONSTITUTION OF THE PHILIPPINES
SO AS TO LOWER THE VOTING AGE TO
Gentlemen:
18
Last night the Constitutional Convention
BE IT RESOLVED as it is hereby resolved passed Resolution No. 1 quoted as follows:
by the 1971 Constitutional Convention:
xxx xxx xxx
Section 1. Section One of Article V of the
Constitution of the Philippines is amended to
as follows: (see above)
RESOLUTION CONFIRMING There should be no more doubt as to the position of this Court
IMPLEMENTATION regarding its jurisdiction vis-a-vis the constitutionality of the
acts of the Congress, acting as a constituent assembly, and, for
On October 12, 1971, the Convention passed that matter, those of a constitutional convention called for the
Resolution No. 24 submitted by Delegate purpose of proposing amendments to the Constitution, which
Jose Ozamiz confirming the authority of the concededly is at par with the former. A simple reading of Our
President of the Convention to implement ruling in that very case of Gonzales relied upon by intervenors
Organic Resolution No. 1, including the should dispel any lingering misgivings as regards that point.
creation of the Ad Hoc Committee ratifying Succinctly but comprehensively, Chief Justice Concepcion held
all acts performed in connection with said for the Court thus: .
implementation.
As early as Angara vs. Electoral
Upon these facts, the main thrust of the petition is that Organic Commission (63 Phil. 139, 157), this Court
Resolution No. 1 and the other implementing resolutions — speaking through one of the leading
thereof subsequently approved by the Convention have no force members of the Constitutional Convention
and effect as laws in so far as they provide for the holding of a and a respected professor of Constitutional
plebiscite co-incident with the elections of eight senators and Law, Dr. Jose P. Laurel — declared that "the
all city, provincial and municipal officials to be held on judicial department is the only constitutional
November 8, 1971, hence all of Comelec's acts in obedience organ which can be called upon to determine
thereof and tending to carry out the holding of the plebiscite the proper allocation of powers between the
several departments and among the integral Representatives act, not as members of
or constituent units thereof." Congress, but as component elements of
a constituent assembly. When acting as such,
It is true that in Mabanag v. Lopez the members of Congress derive their
Vito (supra), this Court characterizing the authority from the Constitution, unlike the
issue submitted thereto as a political one people, when performing the same function,
declined to pass upon the question whether or (Of amending the Constitution) for their
not a given number of votes cast in Congress authority does not emanate from the
in favor of a proposed amendment to the Constitution — they are the very source of all
Constitution — which was being submitted to powers of government including the
the people for ratification — satisfied the Constitution itself.
three-fourths vote requirement of the
fundamental law. The force of this precedent Since, when proposing, as a constituent
has been weakened, however, by Suanes v. assembly, amendments to the Constitution,
Chief Accountant of the Senate (81 Phil. the members of Congress derive their
818), Avelino v. Cuenco, (L-2851, March 4 & authority from the Fundamental Law, it
14, 1949), Tañada v. Cuenco, (L-10520, Feb. follows, necessarily, that they do not have the
28, 1957) and Macias v. Commission on final say on whether or not their acts are
Elections, (L-18684, Sept. 14, 1961). In the within or beyond constitutional limits.
first we held that the officers and employees Otherwise, they could brush aside and set the
of the Senate Electoral Tribunal are under its same at naught, contrary to the basic tenet
supervision and control, not of that of the that ours is a government of laws, not of men,
Senate President, as claimed by the latter; in and to the rigid nature of our Constitution.
the second, this Court proceeded to determine Such rigidity is stressed by the fact that the
the number of Senators necessary Constitution expressly confers upon the
for quorum in the Senate; in the third, we Supreme Court, (And, inferentially, to lower
nullified the election, by Senators belonging courts.) the power to declare a treaty
to the party having the largest number of unconstitutional. (Sec. 2(1), Art. VIII of the
votes in said chamber, purporting to act, on Constitution), despite the eminently political
behalf of the party having the second largest character of treaty-making power.
number of votes therein of two (2) Senators
belonging to the first party, as members, for In short, the issue whether or not a Resolution
the second party, of the Senate Electoral of Congress — acting as a constituent
Tribunal; and in the fourth, we declared assembly — violates the Constitution is
unconstitutional an act of Congress essentially justiciable not political, and,
purporting to apportion the representatives hence, subject to judicial review, and, to the
districts for the House of Representatives, extent that this view may be inconsistent with
upon the ground that the apportionment had the stand taken in Mabanag v. Lopez Vito,
not been made as may be possible according (supra) the latter should be deemed modified
to the number of inhabitants of each province. accordingly. The Members of the Court are
Thus we rejected the theory, advanced in unanimous on this point.
these four (4) cases that the issues therein
raised were political questions the
No one can rightly claim that within the domain of its legitimate
determination of which is beyond judicial
authority, the Convention is not supreme. Nowhere in his
review.
petition and in his oral argument and memoranda does
petitioner point otherwise. Actually, what respondents and
Indeed, the power to amend the Constitution intervenors are seemingly reluctant to admit is that the
or to propose amendments thereto is not Constitutional Convention of 1971, as any other convention of
included in the general grant of legislative the same nature, owes its existence and derives all its authority
powers to Congress (Section 1, Art. VI, and power from the existing Constitution of the Philippines.
Constitution of the Philippines). It is part of This Convention has not been called by the people directly as
the inherent powers of the people — as the in the case of a revolutionary convention which drafts the first
repository sovereignty in a republican state, Constitution of an entirely new government born of either a war
such as ours (Section 1, Art. 11, Constitution of liberation from a mother country or of a revolution against
of the Philippines) — to make, and, hence, to an existing government or of a bloodless seizure of power a la
amend their own Fundamental Law. coup d'etat. As to such kind of conventions, it is absolutely true
Congress may propose amendments to the that the convention is completely without restrain and
Constitution merely because the same omnipotent all wise, and it is as to such conventions that the
explicitly grants such power. (Section 1, Art. remarks of Delegate Manuel Roxas of the Constitutional
XV, Constitution of the Philippines) Hence, Convention of 1934 quoted by Senator Pelaez refer. No amount
when exercising the same, it is said that of rationalization can belie the fact that the current convention
Senators and members of the House of
came into being only because it was called by a resolution of a is naturally unworthy of their learning, experience and
joint session of Congress acting as a constituent assembly by craftsmanship in constitution-making.
authority of Section 1, Article XV of the present Constitution
which provides: We need not go far in search for the answer to the query We
have posed. The very decision of Chief Justice Concepcion in
ARTICLE XV — AMENDMENTS Gonzales, so much invoked by intervenors, reiterates and
reinforces the irrefutable logic and wealth of principle in the
SECTION 1. The Congress in joint session opinion written for a unanimous Court by Justice Laurel in
assembled, by a vote of three-fourths of all Angara vs. Electoral Commission, 63 Phil., 134, reading:
the Members of the Senate and of the House
of Representatives voting separately, may ... (I)n the main, the Constitution has blocked
propose amendments to this Constitution or out with deft strokes and in bold lines,
call a convention for the purpose. Such allotment of power to the executive, the
amendments shall be valid as part of this legislative and the judicial departments of the
Constitution when approved by a majority of government. The overlapping and interlacing
the votes cast at an election at which the of functions and duties between the several
amendments are submitted to the people for departments, however, sometimes makes it
their ratification. hard to say where the one leaves off and the
other begins. In times of social disquietude or
True it is that once convened, this Convention became endowed political excitement, the great landmark of
with extra ordinary powers generally beyond the control of any the Constitution are apt to be forgotten or
department of the existing government, but the compass of such marred, if not entirely obliterated. In cases of
powers can be co-extensive only with the purpose for which the conflict, the judicial department is the only
convention was called and as it may propose cannot have any constitutional organ which can be called upon
effect as part of the Constitution until the same are duly ratified to determine the proper allocation of powers
by the people, it necessarily follows that the acts of convention, between the several departments and among
its officers and members are not immune from attack on the integral or constituent units thereof.
constitutional grounds. The present Constitution is in full force
and effect in its entirety and in everyone of its parts the As any human production our Constitution is
existence of the Convention notwithstanding, and operates even of course lacking perfection and
within the walls of that assembly. While it is indubitable that in perfectibility, but as much as it was within the
its internal operation and the performance of its task to propose power of our people, acting through their
amendments to the Constitution it is not subject to any degree delegates to so provide, that instrument
of restraint or control by any other authority than itself, it is which is the expression of their sovereignty
equally beyond cavil that neither the Convention nor any of its however limited, has established a republican
officers or members can rightfully deprive any person of life, government intended to operate and function
liberty or property without due process of law, deny to anyone as a harmonious whole, under a system of
in this country the equal protection of the laws or the freedom check and balances and subject to specific
of speech and of the press in disregard of the Bill of Rights of limitations and restrictions provided in the
the existing Constitution. Nor, for that matter, can such said instrument. The Constitution sets forth in
Convention validly pass any resolution providing for the taking no uncertain language the restrictions and
of private property without just compensation or for the limitations upon governmental powers and
imposition or exacting of any tax, impost or assessment, or agencies. If these restrictions and limitations
declare war or call the Congress to a special session, suspend are transcended it would be inconceivable if
the privilege of the writ of habeas corpus, pardon a convict or the Constitution had not provided for a
render judgment in a controversy between private individuals mechanism by which to direct the course of
or between such individuals and the state, in violation of the government along constitutional channels,
distribution of powers in the Constitution. for then the distribution of powers would be
mere verbiage, the bill of rights mere
It being manifest that there are powers which the Convention expressions of sentiment and the principles of
may not and cannot validly assert, much less exercise, in the good government mere political apothegms.
light of the existing Constitution, the simple question arises, Certainly the limitations and restrictions
should an act of the Convention be assailed by a citizen as being embodied in our Constitution are real as they
among those not granted to or inherent in it, according to the should be in any living Constitution. In the
existing Constitution, who can decide whether such a United States where no express constitutional
contention is correct or not? It is of the very essence of the rule grant is found in their constitution, the
of law that somehow somewhere the Power and duty to resolve possession of this moderating power of the
such a grave constitutional question must be lodged on some courts, not to speak of its historical origin and
authority, or we would have to confess that the integrated development there, has been set at rest by
system of government established by our founding fathers popular acquiescence for a period of more
contains a wide vacuum no intelligent man could ignore, which than one and half centuries. In our case, this
moderating power is granted, if not expressly, In the case at bar, the National Assembly has
by clear implication from section 2 of Article by resolution (No. 8) of December 3, 1935,
VIII of our Constitution. confirmed the election of the herein petitioner
to the said body. On the other hand, the
The Constitution is a definition of the powers Electoral Commission has by resolution
or government. Who is to determine the adopted on December 9, 1935, fixed said date
nature, scope and extent of such powers? The as the last day for the filing of protests against
Constitution itself has provided for the the election, returns and qualifications of
instrumentality of the judiciary as the rational members of the National Assembly;
way. And when the judiciary mediates to notwithstanding the previous confirmations
allocate constitutional boundaries, it does not made by the National Assembly as aforesaid.
assert any superiority over the other If, as contended by the petitioner, the
departments; it does not in reality nullify or resolution of the National Assembly has the
invalidate an act of the legislature, but only effect of cutting off the power of the Electoral
asserts the solemn and sacred obligation Commission to entertain protests against the
assigned to it by the Constitution to election, returns and qualifications of
determine conflicting claims of authority members of the National Assembly,
under the Constitution and to establish for the submitted after December 3, 1935 then the
parties in an actual controversy the rights resolution of the Electoral Commission of
which that instrument secures and guarantees December 9, 1935, is mere surplusage and
to them. This is in truth all that is involved in had no effect. But, if, as contended by the
what is termed "judicial supremacy" which respondents, the Electoral Commission has
properly is the power of judicial review under the sole power of regulating its proceedings
the Constitution. Even then, this power of to the exclusion of the National Assembly,
judicial review is limited to actual cases and then the resolution of December 9, 1935, by
controversies to be exercised after full which the Electoral Commission fixed said
opportunity of argument by the parties, and date as the last day for filing protests against
limited further to the constitutional question the election, returns and qualifications of
raised or the very lis mota presented. Any members of the National Assembly, should
attempt at abstraction could only lead to be upheld.
dialectics and barren legal questions and to
strike conclusions unrelated to actualities. Here is then presented an actual controversy
Narrowed as its functions is in this manner involving as it does a conflict of a grave
the judiciary does not pass upon questions of constitutional nature between the National
wisdom, justice or expediency of legislation. Assembly on the one hand and the Electoral
More than that, courts accord the Commission on the other. From the very
presumption of constitutionality to legislative nature of the republican government
enactments, not only because the legislature established in our country in the light of
is presumed to abide by the Constitution but American experience and of our own, upon
also because the judiciary in the the judicial department is thrown the solemn
determination of actual cases and and inescapable obligation of interpreting the
controversies must reflect the wisdom and Constitution and defining constitutional
justice of the people as expressed through boundaries. The Electoral Commission as we
their representatives in the executive and shall have occasion to refer hereafter, is a
legislative departments of the government. constitutional organ, created for a specific
purpose, namely, to determine all contests
But much as we might postulate on the relating to the election, returns and
internal checks of power provided in our qualifications of the members of the National
Constitution, it ought not the less to be Assembly. Although the Electoral
remembered that, in the language of James Commission may not be interfered with,
Madison, the system itself is not "the chief when and while acting within the limits of its
palladium of constitutional liberty ... the authority, it does not follow that it is beyond
people who are authors of this blessing must the reach of the constitutional mechanism
also be its guardians ... their eyes must be adopted by the people and that it is not subject
ever ready to mark, their voices to pronounce to constitutional restriction. The Electoral
... aggression on the authority of their Commission is not a separate department of
Constitution." In the last and ultimate the government, and even if it were,
analysis then, must the success of our conflicting claims of authority under the
government in the unfolding years to come be fundamental law between departmental
tested in the crucible of Filipino minds and powers and agencies of the government are
hearts than in consultation rooms and court necessarily determined by the judiciary in
chambers. justiciable and appropriate cases. Discarding
the English type and other European types of body, like the electoral tribunals in Congress, the Comelec and
constitutional government, the framers of our the Constituent assemblies constituted by the House of
Constitution adopted the American type Congress, on the other. We see no reason of logic or principle
where the written constitution is interpreted whatsoever, and none has been convincingly shown to Us by
and given effect by the judicial department. any of the respondents and intervenors, why the same ruling
In some countries which have declined to should not apply to the present Convention, even if it is an
follow the American example, provisions assembly of delegate elected directly by the people, since at
have been inserted in their constitutions best, as already demonstrated, it has been convened by authority
prohibiting the courts from exercising the of and under the terms of the present Constitution..
power to interpret the fundamental law. This
is taken as a recognition of what otherwise Accordingly, We are left with no alternative but to uphold the
would be the rule that in the absence of direct jurisdiction of the Court over the present case. It goes without
prohibition, courts are bound to assume what saying that We do this not because the Court is superior to the
is logically their function. For instance, the Convention or that the Convention is subject to the control of
Constitution of Poland of 1921 expressly the Court, but simply because both the Convention and the
provides that courts shall have no power to Court are subject to the Constitution and the rule of law, and
examine the validity of statutes (art. 81, "upon principle, reason and authority," per Justice Laurel,
Chap. IV). The former Austrian Constitution supra, it is within the power as it is the solemn duty of the Court,
contained a similar declaration. In countries under the existing Constitution to resolve the issues in which
whose constitution are silent in this respect, petitioner, respondents and intervenors have joined in this case.
courts have assumed this power. This is true
in Norway, Greece, Australia and South
II
Africa. Whereas, in Czechoslovakia (arts. 2
and 3, Preliminary Law to Constitutional
Charter of the Czechoslavak, Republic, The issue of jurisdiction thus resolved, We come to the crux of
February 29, 1920) and Spain (arts. 121-123, the petition. Is it within the powers of the Constitutional
Title IX, Constitution of the Republic of Convention of 1971 to order, on its own fiat, the holding of a
1931) especial constitutional courts are plebiscite for the ratification of the proposed amendment
established to pass upon the validity of reducing to eighteen years the age for the exercise of suffrage
ordinary laws. In our case, the nature of the under Section 1 of Article V of the Constitution proposed in the
present controversy shows the necessity of a Convention's Organic Resolution No. 1 in the manner and form
final constitutional arbiter to determine the provided for in said resolution and the subsequent
conflict of authority between two agencies implementing acts and resolution of the Convention?
created by the Constitution. Were we to
decline to take cognizance of the controversy, At the threshold, the environmental circumstances of this case
who will determine the conflict? And if the demand the most accurate and unequivocal statement of the real
conflict were left undecided and issue which the Court is called upon to resolve. Petitioner has
undetermined, would not a void be thus very clearly stated that he is not against the constitutional
created in our constitutional system which extension of the right of suffrage to the eighteen-year-olds, as a
may in the long run prove destructive of the matter of fact, he has advocated or sponsored in Congress such
entire framework? To ask these questions is a proposal, and that, in truth, the herein petition is not intended
to answer them. Natura vacuum abhorret, so by him to prevent that the proposed amendment here involved
must we avoid exhaustion in our be submitted to the people for ratification, his only purpose in
constitutional system. Upon principle, filing the petition being to comply with his sworn duty to
reason, and authority, we are clearly of the prevent, Whenever he can, any violation of the Constitution of
opinion that upon the admitted facts of the the Philippines even if it is committed in the course of or in
present case, this court has jurisdiction over connection with the most laudable undertaking. Indeed, as the
the Electoral Commission and the subject Court sees it, the specific question raised in this case is limited
matter of the present controversy for the solely and only to the point of whether or not it is within the
purpose of determining the character, scope power of the Convention to call for a plebiscite for the
and extent of the constitutional grant to the ratification by the people of the constitutional amendment
Electoral Commission as "the sole judge of proposed in the abovequoted Organic Resolution No. 1, in the
all contests relating to the election, returns manner and form provided in said resolution as well as in the
and qualifications of the members of the subject question implementing actions and resolution of the
National Assembly." . Convention and its officers, at this juncture of its proceedings,
when as it is a matter of common knowledge and judicial notice,
As the Chief Justice has made it clear in Gonzales, like Justice it is not set to adjourn sine die, and is, in fact, still in the
Laurel did in Angara, these postulates just quoted do not apply preliminary stages of considering other reforms or amendments
only to conflicts of authority between the three existing regular affecting other parts of the existing Constitution; and, indeed,
departments of the government but to all such conflicts between Organic Resolution No. 1 itself expressly provides, that the
and among these departments, or, between any of them, on the amendment therein proposed "shall be without prejudice to
one hand, and any other constitutionally created independent other amendments that will be proposed in the future by the
1971 Constitutional Convention on other portions of the without persuasive force both in principle and in logic, the
amended section or on other portions of the entire Constitution." seemingly prevailing view is that only the collective judgment
In other words, nothing that the Court may say or do, in this of its members as to what is warranted by the present condition
case should be understood as reflecting, in any degree or means of things, as they see it, can limit the extent of the constitutional
the individual or collective stand of the members of the Court innovations the Convention may propose, hence the complete
on the fundamental issue of whether or not the eighteen-year- substitution of the existing constitution is not beyond the ambit
olds should be allowed to vote, simply because that issue is not of the Convention's authority. Desirable as it may be to resolve,
before Us now. There should be no doubt in the mind of anyone this grave divergence of views, the Court does not consider this
that, once the Court finds it constitutionally permissible, it will case to be properly the one in which it should discharge its
not hesitate to do its part so that the said proposed amendment constitutional duty in such premises. The issues raised by
may be presented to the people for their approval or rejection. petitioner, even those among them in which respondents and
intervenors have joined in an apparent wish to have them
Withal, the Court rests securely in the conviction that the fire squarely passed upon by the Court do not necessarily impose
and enthusiasm of the youth have not blinded them to the upon Us the imperative obligation to express Our views
absolute necessity, under the fundamental principles of thereon. The Court considers it to be of the utmost importance
democracy to which the Filipino people is committed, of that the Convention should be untrammelled and unrestrained
adhering always to the rule of law. Surely, their idealism, in the performance of its constitutionally as signed mission in
sincerity and purity of purpose cannot permit any other line of the manner and form it may conceive best, and so the Court may
conduct or approach in respect of the problem before Us. The step in to clear up doubts as to the boundaries set down by the
Constitutional Convention of 1971 itself was born, in a great Constitution only when and to the specific extent only that it
measure, because of the pressure brought to bear upon the would be necessary to do so to avoid a constitutional crisis or a
Congress of the Philippines by various elements of the people, clearly demonstrable violation of the existing Charter. Withal,
the youth in particular, in their incessant search for a peaceful it is a very familiar principle of constitutional law that
and orderly means of bringing about meaningful changes in the constitutional questions are to be resolved by the Supreme
structure and bases of the existing social and governmental Court only when there is no alternative but to do it, and this rule
institutions, including the provisions of the fundamental law is founded precisely on the principle of respect that the Court
related to the well-being and economic security of the must accord to the acts of the other coordinate departments of
underprivileged classes of our people as well as those the government, and certainly, the Constitutional Convention
concerning the preservation and protection of our natural stands almost in a unique footing in that regard.
resources and the national patrimony, as an alternative to
violent and chaotic ways of achieving such lofty ideals. In brief, In our discussion of the issue of jurisdiction, We have already
leaving aside the excesses of enthusiasm which at times have made it clear that the Convention came into being by a call of a
justifiably or unjustifiably marred the demonstrations in the joint session of Congress pursuant to Section I of Article XV of
streets, plazas and campuses, the youth of the Philippines, in the Constitution, already quoted earlier in this opinion. We
general, like the rest of the people, do not want confusion and reiterate also that as to matters not related to its internal
disorder, anarchy and violence; what they really want are law operation and the performance of its assigned mission to
and order, peace and orderliness, even in the pursuit of what propose amendments to the Constitution, the Convention and
they strongly and urgently feel must be done to change the its officers and members are all subject to all the provisions of
present order of things in this Republic of ours. It would be the existing Constitution. Now We hold that even as to its latter
tragic and contrary to the plain compulsion of these task of proposing amendments to the Constitution, it is subject
perspectives, if the Court were to allow itself in deciding this to the provisions of Section I of Article XV. This must be so,
case to be carried astray by considerations other than the because it is plain to Us that the framers of the Constitution took
imperatives of the rule of law and of the applicable provisions care that the process of amending the same should not be
of the Constitution. Needless to say, in a larger measure than undertaken with the same ease and facility in changing an
when it binds other departments of the government or any other ordinary legislation. Constitution making is the most valued
official or entity, the Constitution imposes upon the Court the power, second to none, of the people in a constitutional
sacred duty to give meaning and vigor to the Constitution, by democracy such as the one our founding fathers have chosen for
interpreting and construing its provisions in appropriate cases this nation, and which we of the succeeding generations
with the proper parties, and by striking down any act violative generally cherish. And because the Constitution affects the
thereof. Here, as in all other cases, We are resolved to discharge lives, fortunes, future and every other conceivable aspect of the
that duty. lives of all the people within the country and those subject to its
sovereignty, every degree of care is taken in preparing and
During these twice when most anyone feels very strongly the drafting it. A constitution worthy of the people for which it is
urgent need for constitutional reforms, to the point of being intended must not be prepared in haste without adequate
convinced that meaningful change is the only alternative to a deliberation and study. It is obvious that correspondingly, any
violent revolution, this Court would be the last to put any amendment of the Constitution is of no less importance than the
obstruction or impediment to the work of the Constitutional whole Constitution itself, and perforce must be conceived and
Convention. If there are respectable sectors opining that it has prepared with as much care and deliberation. From the very
not been called to supplant the existing Constitution in its nature of things, the drafters of an original constitution, as
entirety, since its enabling provision, Article XV, from which already observed earlier, operate without any limitations,
the Convention itself draws life expressly speaks only of restraints or inhibitions save those that they may impose upon
amendments which shall form part of it, which opinion is not themselves. This is not necessarily true of subsequent
conventions called to amend the original constitution. "may propose amendments to this Constitution," thus placing
Generally, the framers of the latter see to it that their handiwork no limit as to the number of amendments that Congress or the
is not lightly treated and as easily mutilated or changed, not only Convention may propose. The same provision also as definitely
for reasons purely personal but more importantly, because provides that "such amendments shall be valid as part of this
written constitutions are supposed to be designed so as to last Constitution when approved by a majority of the votes cast
for some time, if not for ages, or for, at least, as long as they can at an election at which the amendments are submitted to the
be adopted to the needs and exigencies of the people, hence, people for their ratification," thus leaving no room for doubt as
they must be insulated against precipitate and hasty actions to how many "elections" or plebiscites may be held to ratify any
motivated by more or less passing political moods or fancies. amendment or amendments proposed by the same constituent
Thus, as a rule, the original constitutions carry with them assembly of Congress or convention, and the provision
limitations and conditions, more or less stringent, made so by unequivocably says "an election" which means only one.
the people themselves, in regard to the process of their
amendment. And when such limitations or conditions are so (2) Very little reflection is needed for anyone to realize the
incorporated in the original constitution, it does not lie in the wisdom and appropriateness of this provision. As already
delegates of any subsequent convention to claim that they may stated, amending the Constitution is as serious and important an
ignore and disregard such conditions because they are as undertaking as constitution making itself. Indeed, any
powerful and omnipotent as their original counterparts. amendment of the Constitution is as important as the whole of
it if only because the Constitution has to be an integrated and
Nothing of what is here said is to be understood as curtailing in harmonious instrument, if it is to be viable as the framework of
any degree the number and nature and the scope and extent of the government it establishes, on the one hand, and adequately
the amendments the Convention may deem proper to propose. formidable and reliable as the succinct but comprehensive
Nor does the Court propose to pass on the issue extensively and articulation of the rights, liberties, ideology, social ideals, and
brilliantly discussed by the parties as to whether or not the national and nationalistic policies and aspirations of the people,
power or duty to call a plebiscite for the ratification of the on the other. lt is inconceivable how a constitution worthy of
amendments to be proposed by the Convention is exclusively any country or people can have any part which is out of tune
legislative and as such may be exercised only by the Congress with its other parts..
or whether the said power can be exercised concurrently by the
Convention with the Congress. In the view the Court takes of A constitution is the work of the people thru its drafters
present case, it does not perceive absolute necessity to resolve assembled by them for the purpose. Once the original
that question, grave and important as it may be. Truth to tell, the constitution is approved, the part that the people play in its
lack of unanimity or even of a consensus among the members amendment becomes harder, for when a whole constitution is
of the Court in respect to this issue creates the need for more submitted to them, more or less they can assumed its harmony
study and deliberation, and as time is of the essence in this case, as an integrated whole, and they can either accept or reject it in
for obvious reasons, November 8, 1971, the date set by the its entirety. At the very least, they can examine it before casting
Convention for the plebiscite it is calling, being nigh, We will their vote and determine for themselves from a study of the
refrain from making any pronouncement or expressing Our whole document the merits and demerits of all or any of its parts
views on this question until a more appropriate case comes to and of the document as a whole. And so also, when an
Us. After all, the basis of this decision is as important and amendment is submitted to them that is to form part of the
decisive as any can be. existing constitution, in like fashion they can study with
deliberation the proposed amendment in relation to the whole
The ultimate question, therefore boils down to this: Is there any existing constitution and or any of its parts and thereby arrive
limitation or condition in Section 1 of Article XV of the at an intelligent judgment as to its acceptability.
Constitution which is violated by the act of the Convention of
calling for a plebiscite on the sole amendment contained in This cannot happen in the case of the amendment in question.
Organic Resolution No. 1? The Court holds that there is, and it Prescinding already from the fact that under Section 3 of the
is the condition and limitation that all the amendments to be questioned resolution, it is evident that no fixed frame of
proposed by the same Convention must be submitted to the reference is provided the voter, as to what finally will be
people in a single "election" or plebiscite. It being indisputable concomitant qualifications that will be required by the final
that the amendment now proposed to be submitted to a draft of the constitution to be formulated by the Convention of
plebiscite is only the first amendment the Convention propose a voter to be able to enjoy the right of suffrage, there are other
We hold that the plebiscite being called for the purpose of considerations which make it impossible to vote intelligently on
submitting the same for ratification of the people on November the proposed amendment, although it may already be observed
8, 1971 is not authorized by Section 1 of Article XV of the that under Section 3, if a voter would favor the reduction of the
Constitution, hence all acts of the Convention and the voting age to eighteen under conditions he feels are needed
respondent Comelec in that direction are null and void. under the circumstances, and he does not see those conditions
in the ballot nor is there any possible indication whether they
We have arrived at this conclusion for the following reasons: will ever be or not, because Congress has reserved those for
future action, what kind of judgment can he render on the
1. The language of the constitutional provision aforequoted is proposal?
sufficiently clear. lt says distinctly that either Congress sitting
as a constituent assembly or a convention called for the purpose
But the situation actually before Us is even worse. No one the same should be submitted to them not separately from but
knows what changes in the fundamental principles of the together with all the other amendments to be proposed by this
constitution the Convention will be minded to approve. To be present Convention.
more specific, we do not have any means of foreseeing whether
the right to vote would be of any significant value at all. Who IN VIEW OF ALL THE FOREGOING, the petition herein is
can say whether or not later on the Convention may decide to granted. Organic Resolution No. 1 of the Constitutional
provide for varying types of voters for each level of the political Convention of 1971 and the implementing acts and resolutions
units it may divide the country into. The root of the difficulty in of the Convention, insofar as they provide for the holding of a
other words, lies in that the Convention is precisely on the verge plebiscite on November 8, 1971, as well as the resolution of the
of introducing substantial changes, if not radical ones, in almost respondent Comelec complying therewith (RR Resolution No.
every part and aspect of the existing social and political order 695) are hereby declared null and void. The respondents
enshrined in the present Constitution. How can a voter in the Comelec, Disbursing Officer, Chief Accountant and Auditor of
proposed plebiscite intelligently determine the effect of the the Constitutional Convention are hereby enjoined from taking
reduction of the voting age upon the different institutions which any action in compliance with the said organic resolution. In
the Convention may establish and of which presently he is not view of the peculiar circumstances of this case, the Court
given any idea? declares this decision immediately executory. No costs.
We are certain no one can deny that in order that a plebiscite for Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ.,
the ratification of an amendment to the Constitution may be concur.
validly held, it must provide the voter not only sufficient time
but ample basis for an intelligent appraisal of the nature of the
Separate Opinions
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 MAKALINTAL, J., reserves his vote —
has hardly started considering the merits of hundreds, if not
thousands, of proposals to amend the existing Constitution, to I reserve my vote. The resolution in question is voted down by
present to the people any single proposal or a few of them a sufficient majority of the Court on just one ground, which to
cannot comply with this requirement. We are of the opinion that be sure achieves the result from the legal and constitutional
the present Constitution does not contemplate in Section 1 of viewpoint. I entertain grave doubts as to the validity of the
Article XV a plebiscite or "election" wherein the people are in premises postulated and conclusions reached in support of the
the dark as to frame of reference they can base their judgment dispositive portion of the decision. However, considering the
on. We reject the rationalization that the present Constitution is urgent nature of this case, the lack of time to set down at length
a possible frame of reference, for the simple reason that my opinion on the particular issue upon which the decision is
intervenors themselves are stating that the sole purpose of the made to rest, and the fact that a dissent on the said issue would
proposed amendment is to enable the eighteen year olds to take necessarily be inconclusive unless the other issues raised in the
part in the election for the ratification of the Constitution to be petition are also considered and ruled upon — a task that would
drafted by the Convention. In brief, under the proposed be premature and pointless at this time — I limit myself to this
plebiscite, there can be, in the language of Justice Sanchez, reservation.
speaking for the six members of the Court in Gonzales, supra,
"no proper submission". REYES, J.B.L., ZALDIVAR, CASTRO and
MAKASIAR, JJ., concurring:
III
We concur in the main opinion penned by Mr. Justice Barredo
The Court has no desire at all to hamper and hamstring the noble in his usual inimitable, forthright and vigorous style. Like him,
work of the Constitutional Convention. Much less does the we do not express our individual views on the wisdom of the
Court want to pass judgment on the merits of the proposal to proposed constitutional amendment, which is not in issue here
allow these eighteen years old to vote. But like the Convention, because it is a matter that properly and exclusively addresses
the Court has its own duties to the people under the Constitution itself to the collective judgment of the people.
which is to decide in appropriate cases with appropriate parties
Whether or not the mandates of the fundamental law are being We must, however, articulate two additional objections of
complied with. In the best light God has given Us, we are of the constitutional dimension which, although they would seem to
conviction that in providing for the questioned plebiscite before be superfluous because of the reach of the basic constitutional
it has finished, and separately from, the whole draft of the infirmity discussed in extenso in the main opinion, nevertheless
constitution it has been called to formulate, the Convention's appear to us to be just as fundamental in character and scope.
Organic Resolution No. 1 and all subsequent acts of the
Convention implementing the same violate the condition in Assuming that the Constitutional Convention has power to
Section 1, Article XV that there should only be one "election" propose piecemeal amendments and submit each separately to
or plebiscite for the ratification of all the amendments the the people for ratification, we are nonetheless persuaded that (1)
Convention may propose. We are not denying any right of the that there is no proper submission of title proposed amendment
people to vote on the proposed amendment; We are only in question within the meaning and intendment of Section 1 of
holding that under Section 1, Article XV of the Constitution, Article XV of the Constitution, and (2) that the forthcoming
election is not the proper election envisioned by the same should be debated, considered and voted
provision of the Constitution. upon an election wherein the people could
devote undivided attention to the subject.4
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs.
Commission on True it is that the question posed by the proposed amendment,
Elections1 and Philippine Constitution Association vs. "Do you or do you not want the 18-year old to be allowed to
Commission on Elections,2 expounded his view, with which we vote?," would seem to be uncomplicated and innocuous. But it
essentially agree, on the minimum requirements that must be is one of life's verities that things which appear to be simple
met in order that there can be a proper submission to the people may turn out not to be so simple after all.
of a proposed constitutional amendment. This is what he said:
A number of doubts or misgivings could conceivably and
... amendments must be fairly laid before the logically assail the average voter. Why should the voting age be
people for their blessing or spurning. The lowered at all, in the first place? Why should the new voting age
people are not to be mere rubber stamps. be precisely 18 years, and not 19 or 20? And why not 17? Or
They are not to vote blindly. They must be even 16 or 15? Is the 18-year old as mature as the 21-year old
afforded ample opportunity to mull over the so that there is no need of an educational qualification to entitle
original provisions, compare them with the him to vote? In this age of permissiveness and dissent, can the
proposed amendments, and try to reach a 18-year old be relied upon to vote with judiciousness when the
conclusion as the dictates of their conscience 21-year old, in the past elections, has not performed so well? If
suggest, free from the incubus of extraneous the proposed amendment is voted down by the people, will the
or possibly insidious influences. We believe Constitutional Convention insist on the said amendment? Why
the word "submitted" can only mean that the is there an unseemly haste on the part of the Constitutional
government, within its maximum Convention in having this particular proposed amendment
capabilities, should strain every effort to ratified at this particular time? Do some of the members of the
inform citizen of the provisions to be Convention have future political plans which they want to begin
amended, and the proposed amendments and to subserve by the approval this year of this amendment? If this
the meaning, nature and effects thereof. By amendment is approved, does it thereby mean that the 18-year
this, we are not to be understood as saying old should now also shoulder the moral and legal
that, if one citizen or 100 citizens or 1,000 responsibilities of the 21-year old? Will he be required to render
citizens cannot be reached, then there is no compulsory military service under the colors? Will the age of
submission within the meaning of the word as contractual consent be reduced to 18 years? If I vote against this
intended by the framers of the Constitution. amendment, will I not be unfair to my own child who will be 18
What the Constitution in effect directs is that years old, come 1973? .
the government, in submitting an amendment
for ratification, should put every The above are just samplings from here, there and everywhere
instrumentality or agency within its structural — from a domain (of searching questions) the bounds of which
framework to enlighten the people, educate are not immediately ascertainable. Surely, many more questions
them with respect to their act of ratification can be added to the already long litany. And the answers cannot
or rejection. For we have earlier stated, one be had except as the questions are debated fully, pondered upon
thing is submission and another purposefully, and accorded undivided attention.
is ratification. There must be fair submission,
intelligent consent or rejection." . Scanning the contemporary scene, we say that the people are
not, and by election time will not be, sufficiently informed of
The second constitutional objection was given expression by the meaning, nature and effects of the proposed constitutional
one of the writers of this concurring opinion, in the following amendment. They have not been afforded ample time to
words: deliberate thereon conscientiously. They have been and are
effectively distracted from a full and dispassionate
I find it impossible to believe that it was ever consideration of the merits and demerits of the proposed
intended by its framers that such amendment amendment by their traditional pervasive involvement in local
should be submitted and ratified by just "a elections and politics. They cannot thus weigh in tranquility the
majority of the votes cast at an election at need for and the wisdom of the proposed amendment.
which the amendments are submitted to the
people for their ratification", if the Upon the above disquisition, it is our considered view that the
concentration of the people's attention intendment of the words, "at an election at which the
thereon is to be diverted by other extraneous amendments are submitted to the people for their ratification,"
issues, such as the choice of local and embodied in Section 1 of Article XV of the Constitution, has
national officials. The framers of the not been met.
Constitution, aware of the fundamental
character thereof, and of the need of giving it
FERNANDO, J., concurring and dissenting:
as much stability as is practicable, could have
only meant that any amendments thereto
There is much to be said for the opinion of the Court penned by makes clear that the power of a constitutional convention is not
Justice Barredo, characterized by clarity and vigor, its sovereign. It is appropriately termed constituent, limited as it is
manifestation of fealty to the rule of law couched in eloquent to the purpose of drafting a constitution or proposing revision
language, that commands assent. As the Constitution occupies or amendments to one in existence, subject in either case to
the topmost rank in the hierarchy of legal norms, Congress and popular approval.
Constitutional Convention alike, no less than this Court, must
bow to its supremacy. Thereby constitutionalism asserts itself. The view that commends itself for acceptance is that legislature
With the view I entertain of what is allowable, if not indeed and constitutional convention, alike recognized by the
required by the Constitution, my conformity does not extend as Constitution, are coordinate, there being no superiority of one
far as the acceptance of the conclusion reached. The question over the other. Insofar as the constituent power of proposing
presented is indeed novel, not being controlled by constitutional amendments to the Constitution is concerned, a constitutional
prescription, definite and certain. Under the circumstances, with convention enjoys a wide sphere of autonomy consistently with
the express recognition in the Constitution of the powers of the the Constitution which can be the only source of valid
Constitutional Convention to propose amendments, I cannot restriction on its competence. It is true it is to the legislative
discern any objection to the validity of its action there being no body that the call to a convention must proceed, but once
legal impediment that would call for its nullification. Such an convened, it cannot in any wise be interfered with, much less
approach all the more commends itself to me considering that controlled by Congress. A contrary conclusion would impair its
what was sought to be done is to refer the matter to the people usefulness for the delicate, and paramount task assigned to it. A
in whom, according to our Constitution, sovereignty resides. It convention then is to be looked upon as if it were one of the
is in that sense that, with due respect, I find myself unable to three coordinate departments which under the principle of
join my brethren. separation of powers is supreme within its field and has
exclusive cognizance of matters properly subject to its
I. It is understandable then why the decisive issue posed could jurisdiction. A succinct statement of the appropriate principle
not be resolved by reliance on, implicit in the petition and the that should govern the relationship between a constitutional
answer of intervenors, such concepts as legislative control of convention and a legislative body under American law is that
the constitutional convention referred to by petitioner on the found in Orfield's work. Thus: "The earliest view seems to have
one hand or, on the other, the theory of conventional been that a convention was absolute. The convention was
sovereignty favored by intervenors. It is gratifying to note that sovereign and subject to no restraint. On the other hand,
during the oral argument of petitioner and counsel for Jameson, whose views have been most frequently cited in
respondents and intervenors, there apparently was a retreat from decisions, viewed a convention as a body with strictly limited
such extreme position, all parties, as should be the case, powers, and subject to the restrictions imposed on it by the
expressly avowing the primacy of the Constitution, the legislative call. A third and intermediate view is that urged by
applicable provision of which as interpreted by this Court, Dodd — that a convention, though not sovereign, is a body
should be controlling on both Congress and the Convention. It independent of the legislature; it is bound by the existing
cannot be denied though that in at least one American state, that constitution, but not by the acts of the legislature, as to the
is Pennsylvania, there were decisions announcing the doctrine extent of its constituent power. This view has become
that the powers to be exercised by a constitutional convention increasingly prevalent in the state decisions." 4
are dependent on a legislative grant, in the absence of any
authority conferred directly by the fundamental law. The result 2. It is to the Constitution, and to the Constitution alone then, as
is a convention that is subordinate to the lawmaking body. Its so vigorously stressed in the opinion of the Court, that any
field of competence is circumscribed. It has to look to the latter limitation on the power the Constitutional, Convention must
for the delimitation of its permissible scope of activity. It is thus find its source. I turn to its Article XV. It reads: "The Congress
made subordinate to the legislature. Nowhere has such a view in joint session assembled, by a vote of three fourths of all the
been more vigorously expressed than in the Pennsylvania case Members of the Senate and of the House of Representatives
of Wood's Appeal.1 Its holding though finds no support under voting separately, may propose amendments to this
our constitutional provision. Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when
It does not thereby follow that while free from legislative approved by a majority of the votes cast at an election at which
control, a constitutional convention may lay claim to an the amendments are submitted to the people for their
attribute sovereign in character. The Constitution is quite ratification."
explicit that it is to the people, and to the people alone, in whom
sovereignty resides.2 Such a prerogative is therefore withheld Clearly, insofar as amendments, including revision, are
from a convention. It is an agency entrusted with the concerned, there are two steps, proposal and thereafter
responsibility of high import and significance it is true; it is ratification. Thus as to the former, two constituent bodies are
denied unlimited legal competence though. That is what provided for, the Congress of the Philippines in the mode
sovereignty connotes. It has to yield to the superior force of the therein provided, and a constitutional convention that may be
Constitution. There can then be no basis for the exaggerated called into being. Once assembled, a constitutional convention,
pretension that it is an alter ego of the people. It is to be like the Congress of the Philippines, possesses in all its
admitted that there are some American state decisions, the most plenitude the constituent power. Inasmuch as Congress may
notable of which is Sproule v. Fredericks,3 a Mississippi case, determine what amendments it would have the people ratify and
that dates back to 1892, that yield a different conclusion. The thereafter take all the steps necessary so that the approval or
doctrine therein announced cannot bind us. Our Constitution
disapproval of the electorate may be obtained, the convention used in the Constitution are not inert; they derive vitality from
likewise, to my mind, should be deemed possessed of all the the obvious purposes at which they are aimed. Petitioner's stress
necessary authority to assure that whatever amendments it seeks on linguistic refinement, while not implausible does not, for me,
to introduce would be submitted to the people at an election carry the day.
called for that purpose. It would appear to me that to view the
convention as being denied a prerogative which is not withheld It was likewise argued by petitioner that the proposed
from Congress as a constituent body would be to place it in an amendment is provisional and therefore is not such as was
inferior category. Such a proposition I do not find acceptable. contemplated in this article. I do not find such contention
Congress and constitutional convention are agencies for convincing. The fact that the Constitutional Convention did
submitting proposals under the fundamental law. A power seek to consult the wishes of the people by the proposed
granted to one should not be denied the other. No justification submission of a tentative amendatory provision is an argument
for such a drastic differentiation either in theory or practice for its validity. It might be said of course that until impressed
exists. with finality, an amendment is not to be passed upon by the
electorate. There is plausibility in such a view. A literal reading
Such a conclusion has for me the added reinforcement that to of the Constitution would support it. The spirit that informs it
require ordinary legislation before the convention could be though would not, for me, be satisfied. From its silence I deduce
enabled to have its proposals voted on by the people would be the inference that there is no repugnancy to the fundamental law
to place a power in the legislative and executive branches that when the Constitutional Convention ascertains the popular will.
could, whether by act or omission, result in the frustration of the In that sense, the Constitution, to follow the phraseology of
amending process. I am the first to admit that such likelihood is Thomas Reed Powel, is not silently silent but silently vocal.
remote, but if such a risk even if minimal could be avoided, it What I deem the more important consideration is that while a
should be, unless the compelling force of an applicable public official, as an agent, has to locate his source of authority
constitutional provision requires otherwise. Considering that a in either Constitution or statute, the people, as the principal, can
constitutional convention is not precluded from imposing only be limited in the exercise of their sovereign powers by the
additional restrictions on the powers of either the executive or express terms of the Constitution. A concept to the contrary
legislative branches, or, for that matter, the judiciary, it would would to my way of thinking be inconsistent with the
appear to be the better policy to interpret Article XV in such a fundamental principle that it is in the people, and the people
way that would not sanction such restraint on the authority that alone, that sovereignty resides.
must be recognized as vested in a constitutional convention.
There is nothing in such a view that to my mind would collide 4. The constitutional Convention having acted within the scope
with a reasonable interpretation of Article XV. It certainly is of its authority, an action to restrain or prohibit respondent
one way by which freed from pernicious abstractions, it would Commission on Elections from conducting the plebiscite does
be easier to accommodate a constitution to the needs of an not lie. It should not be lost sight of that the Commission on
unfolding future. That is to facilitate its being responsive to the Elections in thus being charged with such a duty does not act in
challenge that time inevitably brings in its wake. its capacity as the constitutional agency to take charge of all
laws relative to the conduct of election. That is a purely
From such an approach then, I am irresistibly led to the executive function vested in it under Article X of the
conclusion that the challenged resolution was well within the Constitution.5 It is not precluded from assisting the
power of the convention. That would be to brush aside the web Constitutional Convention if pursuant to its competence to
of unreality spun from a too-restrictive mode of appraising the amend the fundamental law it seeks, as in this case, to submit a
legitimate scope of its competence. That would be, for me, to proposal, even if admittedly tentative, to the electorate to
give added vigor and life to the conferment of authority vested ascertain its verdict. At any rate, it may be implied that under
in it, attended by such grave and awesome responsibility. 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
3. It becomes pertinent to inquire then whether the last sentence discharge of its functions.6
of Article XV providing that such amendment shall be valid
when submitted and thereafter approved by the majority of the The aforesaid considerations, such as they are, but which for me
votes cast by the people at an election is a bar to the proposed have a force that I mind myself unable to overcome, leave me
submission. It is the conclusion arrived at by my brethren that no alternative but to dissent from my brethren, with due
there is to be only one election and that therefore the petition acknowledgement of course that from their basic premises, the
must be sustained as only when the convention has finished its conclusion arrived at by them cannot be characterized as in any
work should all amendments proposed be submitted for wise bereft of a persuasive quality of a high order.
ratification. That is not for me, and I say this with respect, the
appropriate interpretation. It is true that the Constitution uses Footnotes
the word "election" in the singular, but that is not decisive. No
undue reliance should be accorded rules of grammar; they do
1 Under Section 36, Rule 138 as amended, no one may appear
not exert a compelling force in constitutional interpretation. as amicus curiae unless invited or allowed, by the Court.
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 REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ.,
a mode of construction does not commend itself. The words concurring:
1 L-28196, Nov. 9, 1967, 21 SCRA 774, 816-817. conduct of elections and shall exercise all other functions which
may be conferred upon it by law." Cf. Abcede v. Imperial, 103
2 L-28224, Nov. 9, 1967, 21 SCRA 774, 816-817. Phil. 136 (1958).
3 Per Justice J.B.L. Reyes, concurred by Justices Arsenio P. 6 "According to Sec. 14 of the 1971 Constitutional Convention
Dizon, Calixto O. Zaldivar, Fred Ruiz Castro and Eugenio Act (1970):"Administration and Technical Assistance. -- All
Angeles. government entities, agencies and instrumentalities, including
the Senate and House of Representatives, shall place at the
disposal of the Convention such personnel premises, and
4 21 SCRA 821.
furniture thereof as can, in their judgment be spared without
detriment to public service, without cost, refund or additional
FERNANDO, J., concurring and dissenting: pay."
is not short. 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
1. The period from September 21 to October 16 or a period of 3
Constitution as well as set up the required machinery and
weeks is not too short for free debates or discussions on the
prescribe the procedure for the ratification of his proposals by
referendum-plebiscite issues. The questions are not new. They
the people?
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 3. Is the submission to the people of the proposed amendments
law. That notwithstanding, the contested brief period for within the time frame allowed therefor a sufficient and proper
discussion is not without counterparts in previous plebiscites for submission?
constitutional amendments. Justice Makasiar, in the
Referendum Case, recalls: "Under the old Society, 15 days were Upon the first issue, Chief Justice Fred Ruiz Castro and
allotted for the publication in three consecutive issues of the Associate Justices Enrique M. Fernando, Claudio Teehankee,
Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes issues readily project themselves as the centers of controversy,
Concepcion Jr. and Ruperto G. Martin are of the view that the namely:
question posed is justiciable, while Associate Justices Felix V.
Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the (1) Is the question of the constitutionality of Presidential
view that the question is political. Decrees Nos. 991, 1031 and 1033 political or justiciable?
Upon the second issue, Chief Justice Castro and Associate (2) During the present stage of the transition period, and under
Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. the environmental circumstances now obtaining, does the
and Martin voted in the affirmative, while Associate Justices President possess power to propose amendments to the
Teehankee and Munoz Palma voted in the negative. Associate Constitution as well as set up the required machineries and
Justice Fernando, conformably to his concurring and dissenting prescribe the procedure for the ratification of his proposals by
opinion in Aquino vs. Enrile (59 SCRA 183), specifically the people?
dissents from the proposition that there is concentration of
powers in the Executive during periods of crisis, thus raising (3) Is the submission to the people of the proposed amendments
serious doubts as to the power of the President to propose
within the time frame allowed therefor a sufficient and proper,
amendments.
submission"
As elucidated therein, with extensive quotations from Tanada To be sure, there is an impressive array of consistent
vs. Cuenco (103 Phil. 1051)- jurisprudence on the proposition that, normally or under normal
conditions, a Constitution may be amended only in accord with
... the term 'political question' connotes, in the procedure set forth therein. Hence, if there be any such
legal parlance, what it means in ordinarily prescription for the amendatory process as invariable there is
parlance, namely, a question of policy in because one of the essential parts of a Constitution is the so-
matters concerning the government of a called "constitution of sovereignty" which comprises the
State, as a body politic. In other words, in the provision or provisions on the modes in accordance with which
language of Corpus Juris Secundum (supra), formal changes in the fundamental law may be effected the
it refers to 'those questions which, under the same would ordinarily be the controlling criterion for the
Constitution, are to be decided by the people validity of the amendments sought.
in their sovereign capacity, or in regard to
which full discretionary authority has been Unfortunately, however, during the present transition period of
delegated to the Legislature or executive our political development, no express provision is extant in the
branch of the government.' It is concerned Constitution regarding the agency or agent by whom and the
with issues dependent upon the wisdom, not procedure by which amendments thereto may be proposed and
legality, of a particular measure.' ratified fact overlooked by those who challenge the validity of
the presidential acts in the premises. This is so because there are
Accordingly, when the grant of power is qualified, conditional at least two distinctly in the transition from the old system of
or subject to limitations, the issue on whether or not the government under the 1935 Constitution to the new one
prescribed qualifications or conditions have been met, or the established by the 1973 Constitution.
limitations respected, is justiciable or non-political, the crux of
the problem being one of legality or validity of the contested The first stage comprises the period from the effectivity of the
act, not its wisdom. Otherwise, said qualifications, conditions Constitution on January 17, 1973 to the time the National
or limitations - particularly those prescribed or imposed by the Assembly is convened by the incumbent President and the
Constitution - would be set at naught." (Javellana vs. Executive interim President and the interim Prime Minister are chosen
Secretary, supra). 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
So it is in the situation here presented. The basic issue is the the Court in Aquino vs. Commission on Elections, et al. (L-
constitutional validity of the presidential acts of proposing 40004, January 31, 1975, 62 SCRA 275), when it rejected the
amendments to the Constitution and of calling a referendum- claim that, under the 1973 Constitution, the President was in
plebiscite for the ratification of the proposals made. Evidently, duty bound to convene the interim National Assembly soon
the question does not concern itself with the wisdom of the after the Constitution took effect.
exercise of the authority claimed or of the specific amendments
proposed. Instead the inquiry vel non is focused solely on the The second stage embraces the period from the date the interim
existence of the said power in the President - a question purely National Assembly is convened to the date the Government
of legality determinable thru interpretation and construction of described in Articles VII to IX of the Constitution is
the letter and spirit of the Constitution by the Court as the final inaugurated, following the election of the members of the
arbiter in the delineation of constitutional boundaries and the regular National Assembly (Article XVII, Section 1) and the
allocation of constitutional powers. election of the regular President and Prime Minister,. This is as
it should be because it is recognized that the President has been
For the Court to shun cognizance of the challenge herein accorded the discretion to determine when he shall initially
presented, especially in these parlous years, would be to convene the interim National Assembly, and his decision to
abdicate its constitutional powers, shirk its constitutional defer the convocation thereof has found overwhelming support
responsibility, and deny the people their ultimate recourse for by the sovereign people in two previous referenda, therein
judicial determination. giving reality to an interregnum between the effectivity of the
Constitution and the initial convocation of the interim National
I have thus no hesitancy in concluding that the question here Assembly, which interregnum, as aforesaid, constitutes the first
presented is well within the periphery of judicial inquiry. stage in the transition period.
Indeed, when the people cast their votes on October 16, a 1. With due respect then, I have to dissociate myself from my
negative vote could very well mean an understanding of the brethren who would rule that governmental powers in a crisis
government, following Rossiter, "are more or less concentrated
proposals which they reject; while an affirmative vote could
in the President." Adherence to my concurring and dissenting
equally be indicative Of such understanding and/or an abiding
opinion in Aquino v. Ponce Enrile leaves me no choice.
credence in the fidelity with which the President has kept the
trust they have confided to him as President and administrator
of martial rule 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
IV
in the Aquino and the other habeas corpus petitions resolved
jointly, it was only in the latter portion of my opinion that
Conclusion
reference was made to United States Supreme Court only authoritative doctrine, Burdick and Willoughby did not
pronouncements on martial law, at the most persuasive in ignore the primacy of civil liberties. Willis wrote after Sterling.
character and rather few in number "due no doubt to the, It would indeed be surprising if his opinion were otherwise.
absence in the American Constitution of any provision After Duncan, such an approach becomes even more strongly
concerning it." 7 It was understandable then that it was only fortified. Schwartz, whose treatise is the latest to be published,
after the landmark Ex parte Milligan case, that commentators has this summary of what he considers the present state of
like Cooley in 1868 and Watson in 1910 paid attention, minimal American law: 'The Milligan and Duncan cases show plainly
by that, to the subject." It was next set forth that in the works on that martial law is the public law of necessity. Necessities alone
American constitutional law published in this century specially calls it forth, necessity justifies its exercise; and necessities
after the leading cases of cases Sterling v. Constant in and measures the extended degree to which it may be It is, the high
Duncan v. Kahanamoku, "there was a fuller treatment of the Court has affirmed, an unbending rule of law that the exercise
question of martial law While it is the formulation of of military power, where the rights of the citizen are concerned,
Willoughby that for me is most acceptable, my opinion did take may, never be pushed beyond what the exigency requires. If
note that another commentator, Burdick, came out earlier with martial law rule survive the necessities on which alone it rests,
a similar appraisal.10 Thus: "So called martial law, except in for even a single minute it becomes a mere exercise of lawless
occupied territory of an enemy is merely the calling in of the violence.' Further: Sterling v. Constantin is of basic importance.
aid of military forces by the executive, who is charged with the Before it, a number of decisions, including one the highest
enforcement of the law, with or without special authorization Court, went or on the theory that the executive had a free hand
by the legislature. Such declaration of martial law does not in taking martial law measures. Under them, it has been widely
suspend the civil law, though it may interfere with the exercise supposed that in proclamation was so far conclusive that any
of one's ordinary rights. The right to call out the military forces action taken under it was immune from judicial scrutiny.
to maintain order and enforce the law is simply part of the Sterling v. Constantin definitely discredits these earlier
Police power, It is only justified when it reasonably appears decisions and the doctrine of conclusiveness derived from them.
necessary, and only justifies such acts as reasonably appear Under Sterling v. Constantin, where martial law measures
necessarily to meet the exigency, including the arrest, or in impinge upon personal or property rights-normally beyond the
extreme cases the. killing of those who create the disorder or scope of military power, whose intervention is lawful only
oppose the authorities. When the exigency is over the members because an abnormal Actuation has made it necessary the
of the military forces are criminally and civilly habit for acts executive's ipse dixit is not of itself conclusive of the
done beyond the scope of reasonable necessity. When honestly necessity.'"15
and reasonably coping with a situation of insurrection or riot a
member of the military forces cannot be made liable for his acts, There was likewise an effort on my part to show what for me is
and persons reasonably arrested under such circumstances will the legal effect of martial law being expressly provided for in
not, during the insurrection or riot, be free by writ of habeas the Constitution rather than being solely predicated on the
corpus." 11 When the opinion cited Willoughby's concept of common law power based on the urgent need for it because of
martial law, stress was laid on his being "Partial to the claims compelling circumstances incident to the state of actual clash of
of liberty."12 This is evident in the explicit statement from his arms: "It is not to be lost sight of that the basis for the
work quoted by me: "There is, then, strictly speaking, no such declaration of martial law in the Philippines is not mere
thing in American law as a declaration of martial law whereby necessity but an explicit constitutional provision. On the other
military law is substituted for civil law. So-called declarations hand, Milligan, which furnished the foundation for Sterling and
of martial law are, indeed, often made but their legal effect goes Duncan had its roots in the English common law. There is
no further than to warn citizens that the military powers have pertinence therefore in ascertaining its significance under that
been called upon by the executive to assist him in the system. According to the noted English author, Dicey: 'Martial
maintenance of law and order, and that, while the emergency law,' in the proper sense of that term, , in which - it means the
lasts, they must, upon pain of arrest and punishment not commit suspension of ordinary law and the temporary government of a
any acts which will in any way render more difficult the country or parts of it be military tribunals, is unknown to the
restoration of order and the enforcement of law. Some of the law of England. We have nothing equivalent to what is called
authorities stating substantially this doctrine are quoted in the in France the "Declaration of the State of Siege," under which
footnote below Nor did I stop there. The words of Willis were the authority ordinarily vested in the civil power for the
likewise cited: "Martial law proper, that is, military law in case maintenance of order and police passes entirely to the army
of insurrection, riots, and invasions, is not a substitute for the (autorite militaire). This is an unmistakable proof of the
civil law, but is rather an aid to the execution of civil law. permanent supremacy of the law under our constitution. There
Declarations of martial law go no further than to warn citizens was this qualification: 'Martial law is sometimes employed as a
that the executive has called upon the military power to assist name for the common law right of the Crown and its servants
him in the maintenance of law and order. While martial law is to repel force by force in the case of invasion, insurrection, riot,
in force, no new powers are given to the executive and no civil or generally of any violent resistance to the law. This right, or
rights of the individual, other than the writ of habeas corpus, are power, is essential to the very existence of orderly government,
suspended. The relations between the citizen and his stature and is most assuredly recognized in the most ample manner by
unchanged."14 the law of England. It is a power which has in itself no special
connection with the existence of an armed force. The Crown
The conclusion reached by me as to the state of American has the right to put down breaches of the peace. Every subject,
federal law on the question of martial law was expressed thus: whether a civilian or a soldier, whether what is called a servant
4'1 It is readily evident that even when Milligan supplied the of the government,' such for example as a policeman, or a
person in no way connected with the administration, not only defense of the political and social liberties of the people and to
has the right, but is, as a matter of legal duty, bound to assist in the institution of reforms to prevent the resurgence of rebellion
putting down breaches of the peace. No doubt policemen or or insurrection or secession or the threat thereof as well as to
soldiers are the persons who, as being specially employed in the meet the impact of a worldwide recession, inflation or economic
maintenance of order, are most generally called upon to crisis which presently threatens all nations including highly
suppress a riot, but it is clear that all loyal subjects are bound to developed countries." 21 To that extent, Rossiter's view mainly
take their part in the suppression of riots." 16 relied upon, now possesses Juristic significant in this
jurisdiction. What, for me at least, gives caused for concern is
Commitment to such an approach results in my inability to that with the opinion of the Court this intrusion of what I would
subscribe to the belief that martial law in terms of what is consider an alien element in the limited concept of martial law
provided both in the 1935 and the present Constitution, affords as set forth in the Constitution would be allowed further
sufficient justification for the concentration of powers in the incursion into the corpus of the law, with the invocation of the
Executive during periods of crisis. The better view, considering view expressed in the last chapter of his work approving tile
the juristic theory on which our fundamental law rests is that "concentration of governmental power in a democracy [as] a
expressed by Justice Black in Duncan v. Kahanamoku: corrective to the crisis inefficiencies inherent in the doctrine of
"Legislatures and courts are not merely cherished American the separation of powers." 22 It is to the credit of the late
institutions; they are indispensable to our government. 17 If Professor Rossiter as an objective scholar that in the very same
there has been no observance of such a cardinal concept at the last chapter, just three pages later, he touched explicitly on the
present, it is due to the fact that before the former Congress undesirable aspect of a constitutional dictatorship. Thus:
could meet in regular session anew, the present Constitution "Constitutional Dictatorship is a dangerous thing. A declaration
was adopted, abolishing it and providing for an interim National of martial law or the passage of an enabling act is a step which
Assembly, which has not been convened.18 So I did view the must always be feared and sometimes bitterly resisted, for it is
matter. at once an admission of the incapacity of democratic institutions
to defend the order within which they function and a too
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile conscious employment of powers and methods long ago
opinion. Reference was made to the first chapter on his work on outlawed as destructive of constitutional government.
Executive legislation, state control of popular liberties, military
Constitutional Dictatorship where he spoke of martial rule as "a
courts, and arbitrary executive action were governmental
device designed for use in the crisis of invasion or rebellion. It
features attacked by the men who fought for freedom not
may be most precisely defined as an extension of military
because they were inefficient or unsuccessful, but because they
government to the civilian population, the substitution of the
will of a military commander for the will of the people's elected were dangerous and oppressive. The reinstitution of any of
government."19Since, for me at least, the Rossiter 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
characterization of martial law has in it more of the common
institution is not adopted."23
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 4. It is by virtue of such considerations that I find myself unable
always subject to attendant limitations in accordance with the to share the view of those of my brethren who would accord
fundamental postulate of a charter's supremacy, I felt justified recognition to the Rossiter concept of concentration of
in concluding: "Happily for the Philippines, the declaration of governmental power in the Executive during periods of crisis.
martial law lends itself to the interpretation that the Burdick, This is not to lose sight of the undeniable fact that in this country
Willoughby, Willis, Schwartz formulations paying due regard through the zeal, vigor, and energy lavished on projects
to the primacy of liberty possess relevance. lt cannot be said that conducive to the general welfare, considerable progress has
the martial rule concept of Rossiter, latitudinarian in scope, has been achieved under martial rule. A fair summary may be found
been adopted, even on the assumption that it can be reconciled in a recent address of the First Lady before the delegates to the
with our Constitution. What is undeniable is that President 1976 international Monetary Fund-World Bank Joint Annual
Marcos has repeatedly maintained that Proclamation No. 1081 Meeting: "The wonder is that so much has been done in so brief
was precisely based on the Constitution and that the validity of a time. Since September 1972, when President Marcos
acts taken there under could be passed upon by the Supreme established the crisis government, peace and order have been
court. For me that is quite reassuring, persuaded as I am restored in a country once avoided as one of the most unsafe in
likewise that the week- of Rossiter is opposed to the the world. We have liberated millions of Filipino farmers from
fundamental concept of our polity, which puts a premium on the bondage of tenancy, in the most vigorous and extensive
freedom."20 implementation of agrarian reform." 24Further, she said: "A
dynamic economy has replaced a stagnant order, and its rewards
3. Candor and accuracy compel the admission that such a are distributed among the many, not hoarded by a few. Our
foreign policy, once confined by fear and suspicion to a narrow
conclusion his to be qualified. For in the opinion of the Court in
alley of self-imposed isolation, now travels the broad
the aforecited Aquino v. Commission on Elections, penned by
expressways of friendship and constructive interaction with the
Justice Makasiar, the proposition was expressly affirmed "that
whole world, these in a new spirit of confidence and self-
as Commander-in-Chief and enforcer or administrator of
martial law, the incumbent President of the Philippines can reliance. And finally, forced to work out our own salvation, the
reclamations, orders and decrees during the period Martial Law Filipino has re-discovered the well-springs of his strength and
resilience As Filipinos, we have found our true Identity. And
essential to the security and preservation of the Republic, to the
having broken our crisis of Identity, we are no longer apologetic
and afraid. "25 The very Idea of a crisis, however, signifies a taken into account that the interim National Assembly has not
transitory, certainly not a permanent, state of things. President been convened and is not likely to be called into session in
Marcos accordingly has not been hesitant in giving utterance to deference to the wishes of the people as expressed in three
his conviction that full implementation of the modified previous referenda. It is the ruling of the majority that the
parliamentary system under the present Constitution should not answer be in the affirmative, such authority being well within
be further delayed. The full restoration of civilian rule can thus the area of presidential competence. Again I find myself unable
be expected. That is more in accord with the imperatives of a to join readily in that conviction. It does seem to me that the
constitutional order. It should not go unnoticed either that the metes and bounds of the executive domain, while still
President has referred to the present regime as one of recognizable, do appear blurred. This is not to assert that there
"constitutional authoritarianism." That has a less objectionable is absolutely no basis for such a conclusion, sustained as it is by
ring, authority being more Identified with the Idea of law, as a liberal construction of the principle that underlies Aquino v.
based on right, the very antithesis of naked force, which to the Commission on Elections as to the validity of the exercise of
popular mind is associated with dictatorship, even if referred to the legislative prerogative by the President as long as the
as "constitutional." interim National Assembly is not For me, the stage of certitude
has not been reached. I cannot simply ignore the vigorous plea
For me likewise, that equally eminent scholar Corwin, also of petitioners that there is a constitutional deficiency consisting
invoked in the opinion of the Court, while no doubt a partisan in the absence of any constituent power on the part of the
of d strong Presidency, was not averse to constitutional President, the express provision of the Constitution conferring
restraints even during periods of crisis. So I would interpret this it on the by team National Assembly.27 The learned advocacy
excerpt from the fourth edition of his classic treatise on the reflected in the pleadings as well as the oral discourse of
Presidency: "A regime of martial law may be compendiously, Solicitor General Estelito P. Mendoza 21 failed to erase the
if not altogether accurately, defined as one in which the ordinary grave doubts in my mind that the Aquino doctrine as to the
law, as administered by the ordinary courts, is superseded for possession of legislative competence by the President during
the time being by the will of a military commander. It follows this period of transition with the interim lawmaking body not
that, when martial law is instituted under national authority, it called into session be thus expanded. The majority of my
rests ultimately on the will of the President of the United States brethren took that step. I am not prepared to go that far. I will
in his capacity as Commander-in-Chief. It should be added at explain why.
once, nevertheless, that the subject is one in which the record of
actual practice fails often to support the niceties of theory. Thus, The way for me, is beset with obstacles. In the first place, such
the employment of the military arm in the enforcement of the an approach would lose sight of the distinction between matters
civil law does not invariably, or even usually, involve martial legislative and constituent. That is implicit in the treatise on the
law in the strict sense, for, as was noted in the preceding section, 1935 Constitution by Justices Malcolm and Laurel In their
soldiers are often placed simply at the disposal and direction of casebook published the same year, one of the four decisions on
the civil authorities as a kind of supplementary police, or posse the subject of constitutional amendments is Ellingham v. Dye
comitatus on the other hand be reason of the discretion that the 31 which categorically distinguished between constituent and
civil authorities themselves are apt to vest in the military in any legislative powers. Dean Sinco, a well-known authority on the
emergency requiring its assistance, the line between such an subject, was quite explicit. Thus: "If there had been no express
employment of the military and a regime of martial law is provision in the Constitution granting Congress the power to
frequently any but a hard and fast one. And partly because of propose amendments, it would be outside its authority to
these ambiguities the conception itself of martial law today assume that power. Congress may not claim it under the general
bifurcates into two conceptions, one of which shades off into grant of legislative power for such grant does not carry with it
military government and the other into the situation just the right 'to erect the state, institute the form of its government,'
described, in which the civil authority remains theoretically in which is considered a function inherent in the people.
control although dependent on military aid. Finally, there is the Congressional law- making authority is limited to the power of
situation that obtained throughout the North during the Civil approving the laws 'of civil conduct relating to the details and
War, when the privilege of the writ of habeas corpus was particulars of the government instituted,' the government
suspended as to certain classes of suspects, although other established by the people."12 If that distinction be preserved,
characteristics of martial law were generally absent."26 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
It is by virtue of the above considerations that, with due respect Makasiar as well as that of the then Justice, now Chief Justice,
to the opinion of my brethren, I cannot yield assent to the Castro, support for the ruling that the President cannot be
Rossiter view of concentration of governmental powers in the deemed as devoid of legislative power during this transition
Executive during martial law. 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
5 There is necessity then, for me at least, that the specific
mentioned. That is the barrier that for me is well-nigh
question raised in all three petitions be squarely faced. It is to
insurmountable. If I limit myself to entertaining doubts rather
the credit of the opinion of the Court that it did so. The basic
than registering a dissent on this point, it is solely because of
issue posed concerns the boundaries of the power of the
President during this period of martial law, more precisely the consideration, possessed of weight and significance, that
whether it covers proposing amendments to the Constitution. there may be indeed in this far-from-quiescent and static period
a need for al. amendments. I do not feel confident therefore that
There is the further qualification if the stand of respondents be
a negative vote on my part would be warranted. What would
justify the step taken by the President, even if no complete press for adoption. Of even greater weight, to my mind, is the
acceptance be accorded to the view that he was a mere conduit pronouncement by the President that the plebiscite is intended
of the barangays on this matter, is that as noted in both qualified not only to solve a constitutional anomaly with the country
concurrences by Justices Teehankee and Munoz Palma in devoid of a legislative body but also to provide. the machinery
Aquino, as far as the legislative and appropriately powers are be which the termination of martial law could be hastened. That
concerned, is the necessity that unless such authority be is a consummation devoutly to be wished. That does militate
recognized, there may be paralyzation of governmental strongly against the stand of petitioners. The obstruction they
activities, While not squarely applicable, such an approach has, would pose may be fraught with pernicious consequences. It
to my mind, a persuasive quality as far as the power to propose may not be amiss to refer anew to what I deem the cardinal
amendments is concerned. character of the jural postulate explicitly affirmed in both the
1935 and the present Constitutions that sovereignty resides in
Thus I would confine myself to the expression of serious doubts the people. So I made clear in Tolentino v. Commission on
on the question rather than a dissent. Elections and thereafter in my dissent in Javellana v. The
Executive Secretary" and my concurrence in Aquino v.
6. The constitutional issue posed as thus viewed leaves me free Commission on Elections. 42 The destiny of the country lies in
their keeping. The role of leadership is not to be minimized. It
to concur in the result that the petitions be dismissed. That is to
is crucial it is of the essence. Nonetheless, it is their will, if
accord respect to the principle that judicial review goes no
given expression in a manner sanctioned by law and with due
further than to checking clear infractions of the fundamental
care that there be no mistake in its appraisal, that should be
law, except in the field of human rights where a much greater
vigilance is required, That is to make of the Constitution a controlling. There is all the more reason then to encourage their
pathway to rather than a barrier against a desirable objective. - participation in the power process. That is to make the regime
truly democratic. Constitutional orthodoxy requires, however,
As shown by my concurring and dissenting opinion in
that the fundamental law be followed. So I would interpret
Tolentino Commission on Elections '34 a pre-martial law
Laski, 43 Corwin, 44 Lerner,45, Bryn-Jones, 46 and McIver.47
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 7. There is reassurance in the thought that this Court has
opportunity to make known their wishes on matters of the affirmed its commitment to the principle that the amending
utmost import for the life of the nation, Constitutional process gives rise to a justiciable rather than a political question.
amendments fall in that category. I am fortified in that So, it has been since the leading case of Gonzales v.
conviction by the teaching of persuasive American decisions Commission on Election S.48 It has since then been followed in
There is reinforcement to such a conclusion from retired Chief Tolentino v. Commission on Elections 49 Planas v. Commission
Justice Concepcion's concurring and dissenting opinion in on Elections," and lastly, in Javellana v. The Executive
Aytona v. Castillo,17 Which I consider applicable to the present Secretary This Court did not heed the vigorous plea of the
situation. These are his words: "It is well settled that the Solicitor General to resurrect the political question doctrine
granting of writs of prohibition and mandamus is ordinarily announced in Mabanag v. Lopez Vito. 52 This is not to deny that
within the sound discretion of the courts, to be exercised on the federal rule in the United States as set forth in the leading
equitable principles, and that said writs should be issued when case of Coleman v. Miller , 53 a 1939 decision, and relatively
the right to the relief is clear * * by As he noted in his ponencia recent State court decisions, supply ammunition to such a
in the later case of Gonzales v. Hechanova,19 an action for contention.,51 That may be the case in the United States, but
prohibition, while petitioner was sustained in his stand, no certainly not in this jurisdiction. Philippine constitutional
injunction was issued. This was evident in the dispositive tradition is to the contrary. It can trace its origin to these words
portion where judgment was rendered "declaring that in the valedictory address before the 1934-35 Constitutional
respondent Executive Secretary had and has no power to Convention by the illustrious Claro M. Recto: "It is one of the
authorize the importation in question; that he exceeded his paradoxes a democracy that the people of times place more
jurisdiction in granting said authority; that said importation is confidence in instrumentalities of the State other than those
not sanctioned by law and is contrary to its provisions; and that, directly chosen by them for the exercise of their sovereignty It
for lack of the requisite majority, the injunction prayed for must can be said with truth, therefore, that there has invariably been
be and is, accordingly, denied." 40 With the illumination thus a judicial predisposition to activism rather than self-restraint.
supplied, it does not necessarily follow that even a dissent on The thinking all these years has been that it goes to the heart of
my part would necessarily compel that I vote for the relief constitutionalism. It may be said that this Court has shunned the
prayed for. Certainly this is not to belittle in any way the action role of a mere interpreter; it did exercise at times creative
taken by petitioners in filing these suits. That, for me, is power. It has to that extent participated in the molding of policy,
commendable. It attests to their belief in the rule of law. Even It has always recognized that in the large and undefined field of
if their contention as to lack of presidential power be accepted constitutional law, adjudication partakes of the quality of
in their entirety, however, there is still discretion that may be statecraft. The assumption has been that just because it cannot
exercised on the matter, prohibition being an equitable remedy. by itself guarantee the formation, much less the perpetuation of
There are, for me, potent considerations that argue against democratic values or, realistically, it cannot prevail against the
acceding to the plea. With the prospect of the interim National pressure of political forces if they are bent in other directions. it
Assembly being convened being dim, if not non- existent, if does not follow that it should not contribute its thinking to the
only because of the results in three previous referenda, there extent that it can. It has been asked, it will continue to be asked,
would be no constitutional agency other than the Executive who to decide momentous questions at each critical stage of this
could propose amendments, which, as noted. may urgently nation's life.
There must be, however, this caveat. Judicial activism gives rise 1. On the merits: I dissent from the majority's dismissal of the
to difficulties in an era of transformation and change. A society petitions for lack of merit and vote to grant the petitions for the
in flux calls for dynamism in "he law, which must be responsive following reasons and considerations: 1. It is undisputed that
to the social forces at work. It cannot remain static. It must be neither the 1935 Constitution nor the 1973 Constitution grants
sensitive to life. This Court then must avoid the rigidity of legal to the incumbent President the constituent power to propose and
Ideas. It must resist the temptation of allowing in the wasteland approve amendments to the Constitution to be submitted to the
of meaningless abstractions. It must face stubborn reality. It has people for ratification in a plebiscite. The 1935 Constitution
to have a feel for the complexities of the times. This is not to expressly vests the constituent power in Congress, be a three-
discount the risk that it may be swept too far and too fast in the fourths vote of all its members, to propose amendments or call
surge of novel concepts. The past too is entitled to a hearing; it a constitutional convention for the purpose The 1973
cannot just be summarily ignored. History still has its uses. It is Constitution expressly vests the constituent power in the regular
not for this Court to renounce the virtue of systematic jural National Assembly to propose amendments (by a three-fourths
consistency. It cannot simply yield to the sovereign sway of the vote of all its members) or "call a constitutional convention" (by
accomplished fact. It must be deaf to the dissonant dialectic of a two-thirds vote of all its members) or "submit the question of
what appears to be a splintered society. It should strive to be a calling such convention to the electorate in an election" (by a
factor for unity under a rule of law. There must be, on its part, majority vote of all its members ) .2
awareness of the truth that a new juridical age born before its
appointed time may be the cause of unprecedented travail that The transitory provisions of the 1973 Constitution expressing
may not end at birth. It is by virtue of such considerations that vest the constituent power during the period of transition in the
I did strive for a confluence of principle and practicality. I must interim National Assembly "upon special call be the Prime
confess that I did approach the matter with some misgivings and Minister (the incumbent President 3)... by a majority ore of all
certainly without any illusion of omniscience. I am comforted its members (to) propose amendments."
by the thought that immortality does not inhere in judicial
opinions. 8. 1 am thus led by my studies on the subject of
Since the Constitution provides for the organization of the
constitutional law and, much more so, by previous judicial essential departments of government, defines and delimits the
opinions to concur in the dismissal of the petitions. If I gave powers of each and prescribes the manner of the exercise of
expression to byes not currently fashionable, it is solely due to
such powers, and the constituent power has not been granted to
deeply-ingrained beliefs. Certainly, I am the first to recognize
but has been withheld from the President or Prime Minister, it
the worth of' the social and economic reforms so needed by the
follows that the President's questioned decrease proposing and
troubled present that have been introduced and implemented.
submitting constitutional amendments directly to the people
There is no thought then of minimizing, much less of refusing (without the intervention of the interim National Assembly in
to concede, the considerable progress that has been made and whom the power is expressly vested) are devoid of
the benefits that have been achieved under this Administration.
constitutional and legal basis.
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 2. The doctrine in the leading case of Tolentino vs. Comelec is
both freedom in its manifestation and accuracy in ascertaining controlling in the case at bar In therein declaring null and void
what it wills. Then, too, it is fitting and proper that a distinction the acts of the 1971 Constitutional Convention and of the
was made between two aspects of the coming poll, the Comelec in calling a plebiscite with the general elections
referendum and the plebiscite. It is only the latter that is scheduled for November 8, 1971 for the purpose of submitting
impressed with authoritative force. So the Constitution requires. for the people's ratification an advance amendment reducing the
Lastly, there should be, as I did mention in my concurrence in voting age from 21 years to 18 years, and issuing writs of
Aquino v. Commission on Elections,56 full respect for free prohibition and injunction against the holding of the plebiscite,
speech and press, free assembly and free association. There this Court speaking through Mr. Justice Barredo ruled that --
should be no thought of branding the opposition as the enemy The Constitutional provisions on amendments "dealing with the
and the expression of its views as anathema, Dissent, it is procedure or manner of amending the fundamental law are
fortunate to note, has been encouraged. It has not been binding upon the Convention and the other departments of the
Identified with disloyalty. That ought to be the case, and not government, (land) are no less binding upon the people
solely due to presidential decrees. Constructive criticism is to
be welcomed not so much because of the right to be heard but As long as an amendment is formulated and
because there may be something worth hearing. That is to submitted under the aegis of the present
ensure a true ferment of Ideas, an interplay of knowledgeable Charter, any proposal for such amendment
minds. There are though well- defined limits, One may not which is not in conformity with the letter,
advocate disorder in the name of protest, much less preach spirit and intent of the Charter for effecting
rebellion under the cloak of dissent.. What I mean to stress is amendments, cannot receive the sanction of
that except on a showing of clear and present danger, there must this Court ;8
be respect for the traditional liberties that make a society truly
free. The real issue here cannot be whether or not the amending
process delineated by the present Constitution may be
TEEHANKEE, J., dissenting: 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 laid down the precedent of justifying deviations from the
repugnant to the essence of the rule of law,"; 9 and requirements of the Constitution the victims of their own folly."
-Accordingly barred the plebiscite as improper and premature, This same apprehension was echoed by now retired Justice
since "the provisional nature of the proposed amendments and Calixto O. Zaldivar in his dissenting opinion in the Ratification
the manner of its submission to the people for ratification or cases 14 that "we will be opening the gates for a similar
rejection" did not "conform with the mandate of the people disregard to the Constitution in the future. What I mean is that
themselves in such regard, as expressed in the Constitution if this Court now declares that a new Constitution is now in
itself', 10 i.e. the mandatory requirements of the amending force because the members of the citizens assemblies had
process as set forth in the Article on Amendments. approved said new Constitution, although that approval was not
in accordance with the procedure and the requirements
3. Applying the above rulings of Tolentino to the case at bar, prescribed in the 1935 Constitution, it can happen again in some
mutatis, mutandis, it is clear that where the proposed future time that some amendments to the Constitution may be
amendments are violative of the Constitutional mandate on the adopted, even in a manner contrary to the existing Constitution
amending process not merely for being a "partial amendment" and the law, and then said proposed amendments is submitted
of a "temporary or provisional character" (as in Tolentino) but to the people in any manner and what will matter is that a basis
more so for not being proposed and approved by the department is claimed that there was approval by the people. There will not
vested by the Constitution with the constituent power to do so, be stability in our constitutional system, and necessarily no
and hence transgressing the substantive provision that it is only stability in our government."
the interim National Assembly, upon special call of the interim
Prime Minister, bu a majority vote of all its members that may 6. It is not legally tenable for the majority, without overruling
propose the amendments, the Court must declare the the controlling precedent of Tolentino (and without mustering
amendments proposals null and void. the required majority vote to so overrule) to accept the
proposed; amendments as valid notwithstanding their being
4. This is so because the Constitution is a "superior paramount "not in conformity with the letter, spirit and intent of the
law, unchangeable by ordinary means" 11 but only by the provision of the Charter for effecting amendments" on the
particular mode and manner prescribed therein by the people. reasoning that "If the President has been legitimately
As stressed by Cooley, "by the Constitution which they discharging the legislative functions of the interim National
establish, (the people) not only tie up the hands of their official Assembly, there is no reason why he cannot validly discharge
agencies but their own hands as well; and neither the officers of the functions."15
the State, nor the whole people as an aggregate body, are at
liberty to take action in opposition to this fundamental law." 12 In the earlier leading case of Gonzales vs. Comelec16, this Court
speaking through now retired Chief Justice Roberto
The vesting of the constituent power to propose amendments in Concepcion, pointer out that "Indeed, the power to
the legislative body (the regular National Assembly) or the Congress"17 or to the National Assembly.18 Where it not for the
interim National Assembly during the transition period) or in a express grant in the Transitory Provisions of the constituent
constitutional convention called for the purpose is in power to the interim National Assembly, the interim National
accordance with universal practice. "From the very necessity of Assembly could not claim the power under the general grant of
the case" Cooley points out "amendments to an existing legislative power during the transition period.
constitution, or entire revisions of it, must be prepared and
matured by some body of representatives chosen for the The majority's ruling in the Referendum cases19 that the
purpose. It is obviously impossible for the whole people to Transitory Provision in section 3(2) recognized the existence of
meet, prepare, and discuss the proposed alterations, and there the authority to legislate in favor of the incumbent President
seems to be no feasible mode by which an expression of their during the period of martial law manifestly cannot be stretched
will can be obtained, except by asking it upon the single point to encompass the constituent power as expressly vested in the
of assent or disapproval." This body of representatives vested interim National Assembly in derogation of the allotment of
with the constituent - power "submits the result of their powers defined in the Constitution.
deliberations" and "puts in proper form the questions of
amendment upon which the people are to pass"-for ratification Paraphrasing Cooley on the non-delegation of legislative power
or rejection.13 as one of the settled maxims of constitutional law, 20the
contituent power has been lodged by the sovereign power of the
5. The Court in Tolentino thus rejected the argument "that the people with the interim National Assembly during the transition
end sought to be achieved is to be desired" and in denying period and there it must remain as the sole constitutional agency
reconsideration in paraphrase of the late Claro M. Recto until the Constitution itself is changed.
declared that "let those who would put aside, invoking grounds
at best controversial, any mandate of the fundamental As was aptly stated by Justice Jose P. Laurel in the 1936
purportedly in order to attain some laudable objective bear in landmak case of Angara vs. Electoral Commissioner21, "(T)he
mind that someday somehow others with purportedly more Constitution sets forth in no uncertain language and restrictions
laudable objectives may take advantage of the precedent and and limitations upon governmental powers and agencies. If
continue the destruction of the Constitution, making those who 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 executive power as vested in the Prime Minister (the incumbent
constitutional channels, for then the distribution of powers President) with the assistance of the Cabinet 25 from whom such
sentiment, and the principles of good government mere political power has been withheld.
apothegms. Certainly, the limitations and restrictions embodied
in our Constitution are real as they should be in any living It will not do to contend that these proposals represent the voice
Constitution". 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
7. Neither is the justification of "constitutional impasses" only when expressed at the times and under the conditions
tenable. The sentiment of the people against the convening of which they themselves have prescribed and pointed out by the
the interim National Assembly and to have no elections for "at Constitution. ... ."26
least seven (7) years" Concededly could not ament the
Constitution insofar as the interim National Assembly is The same argument was put forward and rejected by this Court
concerned (since it admittendly came into existence in Tolentino which rejected the contention that the "Convention
"immediately" upon the proclamation of ratification of the 1973 being a legislative body of the highest order (and directly
Constitution), much less remove the constituent power from elected by the people to speak their voice) is sovereign, in as
said interim National Assembly. such, its acts impugned by petitioner are beyond the control of
Congress and the Courts" and ruled that the constitutional
As stressed in the writer's separate opinion in the Referendum article on the amending process" is nothing more than a part of
cases22, "(W)hile it has been advanced that the decision to defer the Constitution thus ordained by the people. Hence, in
the initial convocation of the interim National Assembly was continuing said section, We must read it as if the people said,
supported by the results of the referendum in January, 1973 "The Constitution may be amended, but it is our will that the
when the people voted against the convening of the interim amendment must be proposed and submitted to Us for
National Assembly for at least seven years, such sentiment ratification only in the manner herein provided'".27
cannot be given any legal force and effect in the light of the
State's admission at the hearing that such referendums are This Court therein stressed that "This must be so, because it is
merely consultative and cannot amend the Constitution or plain to Us that the framers of the Constitution took care that
Provisions which call for the 'immediate existence' and 'initial the process of amending the same should not be undertaken
convening of the interim National Assembly to 'give priority to with the same ease and facility in changing an ordinary
measures for the orderly transition from the presidential to the legislation. Constitution making is the most valued power,
parliamentary system' and the other urgent measures second to none, of the people in a constitutional democracy such
enumerated in section 5 thereof". as the one our founding fathers have chosen for this nation, and
which we of the succeeding generations generally cherish. And
While the people reportedly expressed their mandate against the because the Constitution affects the lives, fortunes, future and
convening of the interim National Assembly to dischange its every other conceivable aspect of the lives of all the people
legislative tasks during the period of transition under martial within the country and those subject to its sovereignity, ever
law, they certainly had no opportunity and did not express constitution worthy of the people for which it is intended must
themselves against convening the interim National Assembly to not be prepared in haste without adequate deliberation and
discharge the constituent power to propose amendments study. It is obvious that correspondingly, any amendment of the
likewise vested in it by the people's mandate in the Constitution. Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and
In point of fact, when the holding of the October 16, 1976 prepared with as much care and deliberation;" and that "written
referendum was first announced, the newspapers reported that constitutions are supposed to be designed so as to last for some
among the seven questions proposed by the sanggunian and time, if not for ages, or for, at least, as long as they can be
barangay national executive committies for the referendum was adopted to the needs and exigencies of the people, hence, they
the convening of the interim National Assembly.23 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
It was further reported that the proposals which were termed
limitations and conditions, more or less stringent, made so by
tentative "will be discussed and studied by (the President), the
the people themselves, in regard to the process of their
members of the cabinet, and the security council" and that the
amendment."28
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 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.
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 As Mr. Justice Fernando emphasized for this Court in Mutuc vs.
amending process as provided in the Constitution must be Comelec 29 in the setting as in of a Comelec resolution banning
complied with. This means, under the teaching of Tolentino that the use of political taped jingles by candidates for
the proposed amendments must validly come from the Constitutional Convention delegates int he special 1970
constitutional agency vested with the constituent power to do elections, "the concept of the Constitution as the fundamental
so, namely, the interim National Assembly, and not from the law, setting forth the criterion for the validity of any public act
whether proceeding from the highest official or the lowest and unselfish patriotism of all officials and in their faithful
functionary, is a postulate of our system of government. That is 'Adherence to the Constitution".
to amnifst fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal heirarchy. The The martial law clause of the 1973 Constitution found in Article
three departments of government in the discharge of the IX, section 12 , as stressed by the writer in his separate opinion
functions with which it is entrusted have no choice but to yield in the Referendum Cases,14 "is a verbatim reproduction of
obedience to its commands. Whatever limits it imposes must be Article VII, section 10 (2) of the 1935 Constitution and provides
observed. Congress in the enactment of statutes must ever be on for the imposition of martial law only 'in case of invasion,
guart lest the restrictions on its authority, whether substantive resurrection or rebellion, or imminent danger thereof, when the
or formal, be transcended. The Presidency in the execution of public safety requires it and hence the use of the legislative
the laws cannot ignore of disregard what it ordains. In its task power or more accurately 'military power' under martial rule is
of applying the law to the facts as found in deciding cases, the limited to such necessary measures as will safeguard the
judiciary is called upon the maintain inviolate what is decreed Republic and suppress the rebellion (or invasion)". 35
by the fundamental law."
11. Article XVII, section 3 (2) of the 1973 Constitution which
This is but to give meaning to the plan and clear mandate of has been held by the majority in the Referendum Cases to be
section 15 of the Transitory Provisions (which allows of no the recognition or warrant for the exercise of legislative power
other interpretation) that during the stage of transition the by the President during the period of martial law is but a
interim National Assembly alone exercises the constituent transitory provision. Together with the martial law clause, they
power to propose amendments, upon special call therefor. This constitute but two provisions which are not to be considered in
is reinforced by the fact that the cited section does not grant to isolation from the Constitution but as mere integral parts thereof
the regular National Assembly of calling a constitutional which must be harmonized consistently with the entire
convention, thus expressing the will of the Convention (and Constitution.
presumably of the people upon ratification) that if ever the need
to propose amendments arose during the limited period of As Cooley restated the rule: "effect is to be given, if possible,
transition, the interim National Assembly alone would
to the whole instrument, and to every section and clause. If
discharge the task and no constitutional convention could be
different portions seem to conflict, the courts must harmonize
call for the purpose.
them, if practicable, and must lean in favor of a construction
which will render every word operative, rather than one which
As to the alleged costs involved in convening the interim may make some words Idle and nugatory.
National Assembly to propose amendments, among them its
own abolition, (P24 million annually in salaries alone for its 400
This rule is applicable with special force to
members at P600,000.00 per annum per member, assuming that
written constitutions, in which the people will
its deliberations could last for one year), suffice it to recall this
be presumed to have expressed themselves in
Court's pronouncement in Tolentino (in reflecting a similar careful and measured terms, corresponding
argument on the costs of holding a plebiscite separately from with the immense importance of the powers
the general elections for elective officials) that "it is a matter of
delegated, leaving as little as possible to
public knowledge that bigger amounts have been spent or
implication. It is scarcelly conceivable that a
thrown to waste for many lesser objectives. ... Surely, the
case can arise where a court would bye
amount of seventeen million pesos or even more is not too much
justified in declaring any portion of a written
a price to pay for fealty and loyalty to the Constitution ... constitution nugatory because of ambiguity.
" 30 and that "while the financial costs of a separate plebiscite One part may qualify another so as to restrict
may be high, it can never be as much as the dangers involved in
its operation, or apply it otherwise than the
disregarding clear mandate of the Constitution, no matter how
natural construction would require if it stood
laudable the objective" and "no consideration of financial costs
by itself; but one part is not to be allowed to
shall deter Us from adherence to the requirements of the defeat another, if by any reasonable
Constitution".11 construction the two can be made to stand
together. 36
10. The imposition of martial law (and "the problems of
rebellion, subversion, secession, recession, inflation and
The transcendental constituent power to propose and approve
economic crisis a crisis greater than war") 32 cited by the amendments to the Constitution as well as set up the machinery
majority opinion as justifying the concentration of powers in the and prescribe the procedure for the ratification of his proposals
President, and the recognition now of his exercising the
has been withheld from the President (Prime Minister) as sole
constituent power to propose amendments to the Fundamental
repository of the Executive Power, presumably in view of the
Law "as agent for and in behalf of the people" 33 has no
immense powers already vested in him by the Constitution but
constitutional basis.
just as importantly, because by the very nature of the constituent
power, such amendments proposals have to be prepared,
In the post-war Emergency Powers 33*, former Chief Justice deliberated and matured by a deliberative assembly of
Ricardo Paras reaffirmed for the Court the principle that representatives such as the interim National Assembly and
emergency in itself cannot and should not create power. In our hence may not be antithetically entrusted to one man.
democracy the hope and survival of the nation lie in the wisdom
Former Chief Justice Roberto Concepcion had observed before Thus, in Gonzales,42 (by a unanimous Court) and in
the elevation of the l971 Constitutional Convention that the Tolentino43 (by the required constitutional majority), the Court
records of past plebiscites show that the constitutional agency has since consistently ruled that when proposing and approving
vested with the exercise of the constituent power (Congress or amendments to the Constitution, the members of Congress.
the Constitutional Convention) really determined the acting as a constituent assembly or the members of the
amendments to the Constitution since the proposals were Constitutional Convention elected directly for the purpose by
invariably ratified by the people 37 thus: "although the people not have the final say on whether or not their acts are within or
have the reserved power to ratify or reject the action taken by beyond constitutional limits. Otherwise, they could brush aside
the Convention, such power is not, in view of the circumstances and set the same at naught, contrary to the basic tenet that outs
attending its exercise, as effective as one might otherwise think: is it government of lawsom not of men, and to the rigid nature
that, despite the requisite ratification by the people, the actual of our Constitution. Such rigidity is stressed by the fact that, the
contents of our fundamental law will really be determined by Constitution expressly confers upon the Supreme Court, the
the Convention; that, accordingly the people should exercise the power to declare a treaty unconstitutional, despite the eminently
greatest possible degree of circumspection in the election of political character of treaty-making power".44
delegates thereto ... "38
As amplified by former Chief Justice Concepcion in Javellana
12. Martial law concededly does not abrogate the Constitution vs Executive Secretary 45 (by a majority vote), "when the grant
nor obliterate its constitutional boundaries and allocation of of power is qualified, conditional or subject to limitations. the
powers among the Executive, Legislative and Judicial issue on whether or not the prescribed qualifications or
Departments. 39 conditions have been met, or the limitations by expected, is
justiciable or non-political, the crux of the problem being one
It has thus been aptly observed that "Martial law is an of legality or validity of the contested act, not its wisdom
emergency regime, authorized by and subject to the Otherwise, said qualifications, conditions and limitations-
Constitution. Its basic premise is to preserve and to maintain the particularly those prescribed or imposed by the Constitution
Republic against the dangers that threaten it. Such premise would be set at naught".
imposes constraints and limitations. For the martial law regime
fulfills the constitutional purpose only if, by reason of martial The fact that the proposed amendments are to be submitted to
law measures, the Republic is preserved. If by reason of such the people for ratification by no means makes the question
measures the Republic is so transformed that it is changed in its political and non- justiciable since as stressed even in Javellana
nature and becomes a State other than republican, then martial the issue of validity of the President's proclamation of
law is a failure; worse, martial law would have become the ratification of the Constitution presented a justiciable and non-
enemy of the Republic rather than its defender and preserver." 40 political question
II. On the question of the Court's jurisdiction to pass upon the Stated otherwise, the question of whether the Legislative acting
constitutionality of the questioned presidential decrees: let it be as a constituent assembly or the Constitutional Convention
underscored that the Court has long set at rest the question. called fol- the purpose, in proposing amendments to the people
for ratification followed the constitutional procedure and on the
The trail was blazed for the Court since the benchmark case of amending process is perforce a justiciable question and does not
Angara vs. Electoral Commission when Justice Jose P. Laurel raise a political question of police or wisdom of the proposed
echoed U.S. Chief Justice Marshall's "climactic phrase" that amendments, which if Submitted, are reserved for the people's
"we must never forget that it is a Constitution we are decision.
expounding" and declared the Court's "solemn and sacred"
constitutional obligation of judicial review and laid down the The substantive question presented in the case at bar of whether
doctrine that the Philippine Constitution as "a definition of the the President may legally exercise the constituent power vested
powers of government" placed upon the judiciary the great in the interim National Assembly (which has not been granted
burden of "determining the nature, scope and extent of such to his office) and propose constitutional amendments is
powers" and stressed that "when the judiciary mediates to preeminently a justiciable issue.
allocate constitutional boundaries, it does not assert any
superiority over the other departments . . . but only asserts the Justice Laurel in Angara had duly enjoined that "in times of
solemn and sacred obliteration entrusted to it by the social disquietude or political excitement, the great landmarks
Constitution to determine conflicting claims of authority under of the Constitution are apt to be forgotten or marred, if not
the Constitution and to establish for the parties in an actual entirely obliterated. In cases of conflict, the judicial department
controversy the rights which the instrument secures and is the only constitutional organ which can be called upon to
guarantees to them". determine the proper allocation of powers between the several
departments and among the integral or constituent units
At the same time, the Court likewise adhered to the thereof".
constitutional tenet that political questions, i.e. questions which
are intended by the Constitutional and relevant laws to be To follow the easy way out by disclaiming jurisdiction over the
conclusively determined by the "political", i.e. branches of issue as a political question would be judicial abdication.
government (namely, the Executive and the Legislative) are
outside the Court's jurisdiction. 41
III. On the question of whether there is a sufficient and proper before the people for their blessing or
submittal of the proposed amendments to the people: spurning. The people are not to be mere
Prescinding from the writer's view of the nullity of the rubber stamps. They are not to vote blindly.
questioned decree of lack of authority on the President's part to They must be afforded ample opportunity to
excercise the constituent power, I hold that the doctrine of fair mull over the original provisions, compare
and proper submission first enunciated by a simple majority of them with the proposed amendments, and try
by Justices in Gonzales and subsequently officially adopted by to reach a conclusion as the dictates of their
the required constitutional two-thirds majority of the Court in is conscience suggest, free from the incubus of
controlling in the case at bar. extraneous or possibly insidious influences.
We believe the word submitted' can only
1. There cannot be said to be fair and proper submission of the mean that the government, within its
proposed amendments. As ruled by this Court in Tolentino maximum capabilities, should strain every
where "the proposed amendment in question is expressly effort to inform every citizen of the
saddled with reservations which naturally impair, in great provisions to be amended, and the proposed
measures, its very essence as a proposed constitutional amendments and the meaning, nature and
amendment" and where "the way the proposal is worded, read effects thereof. By this, we are not to be
together with the reservations tacked to it by the Convention understood as saying that, if one citizen or
thru Section 3 of the questioned resolution, it is too much of a 100 citizens or 1,000 citizens cannot be
speculation to assume what exactly the amendment would reached, then there is no submission within
really amount lo in the end. All in all, as already pointed out in the meaning of the word as intended by the
our discussion of movants' first ground, if this kind of framers of the Constitution. What the
amendment is allowed, the Philippines will appear before the Constitution in effect directs is that the
world to be in the absurd position of being the only country with government, in submitting an amendment for
a constitution containing a provision so ephemeral no one ratification, should put every instrumentality
knows until when it will bet actually in force", there can be no or agency within its structural framework to
proper submission. enlighten the people, educate them with
respect to their act of ratification or rejection.
For, as we have earlier stated, one thing is
In Tolentino a solitary amendment reducing the voting age to
submission and another is ratification. There
18 years was struck down by this Court which ruled that "in
must be fair submission, intelligent. consent
order that a plebiscite for the ratification of an amendment to
the Constitution may be validly held, it must provide the voter or rejection. If with all these safeguards the
not only sufficient time but ample basis for an intelligent people still approve the amendment no matter
how prejudicial it is to them, then so be it. For
appraisal of the nature of the amendment per se as well as its
the people decree their own fate.48
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 Justice Sanchez therein ended the passage with an apt citation
reference they can base their judgment on 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
2. The now Chief Justice and Mr. Justice Makasiar with two
should be beyond the reach of temporary excitement and.
other members 46 graphically pointed out in their joint separate
popular caprice or passion. It is needed for stability and
opinion that the solitary question "would seem to be
uncomplicated and innocuous. But it is one of life's verities that 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
things which appear to be simple may turn out not to be so
blood, but the sober second thought, which alone, if the
simple after all".47
government is to be safe, can be allowed efficiency. xxx xxx
xxx Changes in government are to be feared unless the benefit
They further expressed "essential agreement" with Mr. Justice is certain. As Montaign says: All great mutations shake and
Conrado V. Sanchez' separate opinion in Gonzales "on the disorder state. Good does not necessarily succeed evil ;another
minimum requirements that must be met in order that there can evil may succeed and a worse'." 49
be a proper submission to the people of a proposed
constitutional amendment" which reads thus:
Justice Sanchez thus stated the rule that has been adopted by the
Court in Tolentino that there is no proper submission "if the
... we take the view that the words 'submitted people are not sufficiently affirmed of the amendments to be
to the people for their ratification', if voted upon, to conscientiously deliberate thereon, to express
construed in the light of the nature of the their will in a genuine manner. ... .." 50
Constitution a fundamental charter that is
legislation direct from the people, an
expression of their sovereign will - is that it 3. From the complex and complicated proposed amendments
can only be amended by the people set forth in the challenged decree and the plethora of confused
and confusing clarifications reported in the daily newspapers, it
expressing themselves according to the
is manifest that there is no proper submission of the proposed
procedure ordained by the Constitution.
amendments. Nine (9) proposed constitutional amendments
Therefore, amendments must be fairly laid
were officially proposed and made known as per Presidential corporations would appear to be eliminated, if not prescribed by
Decree No. 1033 dated, September 22, 1976 for submittal at the the President;
"referendum-plebiscite" called for this coming Saturday,
October 16, 1976 wherein the 15-year and under 18-year- olds Under Amendment No. 5, the President shall continue to
are enjoined to vote notwithstanding their lack of qualification exercise legislative powers until martial law is lifted;
under Article VI of the Constitution. Former Senator Arturo
Tolentino, an acknowledged parliamentarian of the highest
Under Amendment No. 6, there is a duality of legislative
order, was reported by the newspapers last October 3 to have authority given the President and the interim Batasang
observed that "there is no urgency in approving the proposed Pambansa as well as the regular National Assembly, as pointed
amendments to the Constitution and suggested that the question
out by Senator Tolentino, with the President continuing to
regarding charter changes be modified instead of asking the
exercise legislative powers in case of "grave emergency or a
people to vote on hurriedly prepared amendments". He further
threat or imminence thereof" (without definition of terms) or
pointed out that "apart from lacking the parliamentary style in
when said Assemblies "fail or are unable to act adequately on
the body of the Constitution, they do not indicate what any matter for any reason that in his judgment requires
particular provisions are being repealed or amended". 52 immediate action", thus radically affecting provisions of the
Constitution governing the said departments;
As of this writing, October 11, 1976, the paper today reported
his seven-page analysis questioning among others the proposed
Under Amendment No. 7, the barangays and Sanggunians
granting of dual legislative powers to both the President and the would apparently be constitutionalized, although their
Batasang Pambansa and remarking that "This dual legislative functions, power and composition may be altered by law.
authority can give rise to confusion and serious constitutional
Referendums (which are not authorized in the present 1973
questions".53
Constitution) would also be constitutionalized, giving rise to the
possibility fraught with grave consequences, as acknowledged
Aside from the inadequacy of the limited time given for the at the hearing, that amendments to the Constitution may
people's consideration of the proposed amendments, there can thereafter be effected by referendum, rather than by the rigid
be no proper submission because the proposed amendments are and strict amending process provided presently in Article XVI
not in proper form and violate the cardinal rule of amendments of the Constitution;
of written constitutions that the specific provisions of the
Constitution being repealed or amended as well as how the Under Amendment No. 8, there is a general statement in general
specific provisions as amended would read, should be clearly that the unspecified provisions of the Constitution "not
stated in careful and measured terms. There can be no proper
inconsistent with any of these amendments" shall continue in
submission because the vagueness and ambiguity of the
full force and effect; and Under Amendment No. 9. the
proposals do not sufficiently inform the people of the
incumbent President is authorized to proclaim the ratification of
amendments for, conscientious deliberation and intelligent
the amendments by the majority of votes cast. It has likewise
consent or rejection. been stressed by the officials concerned that the proposed
amendments come in a package and may not be voted upon
4. While the press and the Solicitor General at the hearing have separately but on an "all or nothing" basis.
stated that the principal thrust of the proposals is to substitute
the interim National Assembly with an interim Batasang
5. Whether the people can normally express their will in a
Pambansa, a serious study thereof in detail would lead to the genuine manner and with due circumspection on the proposed
conclusion that the whole context of the 1973 Constitution amendments amidst the constraints of martial law is yet another
proper would be affected and grave amendments and
question. That a period of free debate and discussion has to be
modifications thereof -would apparently be made, among
declared of itself shows the limitations on free debate and
others, as follows:
discussion. The facilities for free debate and discussion over the
mass media, print and otherwise are wanting. The President
Under Amendment No. 1, the qualification age of members of himself is reported to have observed the timidity of the media
the interim Batasang Pambansa is reduced to 18 years; under martial law and to have directed the press to air the views
of the opposition.54
Under Amendment No. 2, the treaty-concurring power of the
Legislature is withheld from the interim Batasang Pambansa; Indeed, the voice of the studentry as reflected in the editorial of
the Philippine Collegian issue of September 23, 1976 comes as
Under Amendment No 3, not withstanding the convening of the a welcome and refreshing model of conscientious deliberation,
interim Batasang Pambansa within 30 days from the election as our youth analyzes the issues "which will affect generations
and selection of the members (for which there is no fixed date) yet to come" and urge the people to mull over the pros and cons
the incumbent President apparently becomes a regular President very carefully", as follows:
and Prime Minister (not ad interim);
THE REFERENDUM ISSUES
Under Amendment No. 4, the disqualifications imposed on
members of the Cabinet in the Constitution such as the On October 16, the people may be asked to
prohibition against the holding of more than one office in the decide on two important national issues - the
government including government-owned or -controlled
creation of a new legislative body and the of it all. After the euphoria, however, the
lifting of martial law. people seem to have gone back to the old
ways, with the exception that some of our
On the first issue, it is almost sure that the freedoms were taken away, and an
interim National Assembly will not be authoritarian regime established.
convened, primarily because of its
membership. Majority of the members of the We must bear in mind that martial law was
defunct Congress, who are mandated by the envisioned only to cope with an existing
Constitution to become members of the national crisis, It was not meant to be availed
interim National Assembly, have gained so of for a long period of time, otherwise it
widespread a notoriety that the mere mention would undermine our adherence to a
of Congress conjures the image of a den of democratic form of government. In the words
thieves who are out to fool the people most of of the Constitution. martial law shall only be
the time. Among the three branches of declared in times of 'rebellion, insurrection,.
government, it was the most discredited. In invasion, or imminent danger thereof, when
fact, upon the declaration of martial law, the public safety requires it'. Since we no
some people were heard to mutter that a longer suffer from internal disturbances of a
'regime that has finally put an end to such gargantuan scale, it is about time we seriously
congressional shenanigans could not be all rethink the 'necessity' of prolonging the
that bad'. martial law regime. If we justify the
continuance of martial by economic or other
A substitute legislative body is contemplated reasons other than the foregoing
to help the President in promulgating laws, constitutional grounds, then our faith in the
and perhaps minimize the issuance of ill- Constitution might be questioned. Even
drafted decrees which necessitate constant without martial law,. the incumbent Chief
amendments. But care should be taken that Executive still holds vast powers under the
this new legislative body would not become constitution. After all, the gains of the New
a mere rubber stamp akin to those of other Society can be secured without sacrificing the
totalitarian countries. It should be given real freedom of our people. If the converse is true,
powers, otherwise we will just have another then we might have to conclude that the
nebulous creation having the form but Filipinos deserve a dictatorial form of
lacking the substance. Already the President government. The referendum results will
has expressed the desire that among the show whether the people themselves have
powers he would like to have with regard to adopted this sad conclusion.
the proposed legislative body is that of
abolishing it in case 'there is a need to do so'. The response of the people to the foregoing
As to what would occasion such a need, only issues will affect generations yet to come, so
the President himself can determine. This they should mull over the pros and cons very
would afford the Chief Executive almost total carefully."
power over the legislature, for he could
always offer the members thereof a carrot and 6. This opinion by written in the same spirit as the President's
a stick. exhortations on the first anniversary of proclamation of the
1973 Constitution that we "let the Constitution remain firm and
On the matter of lifting martial law the people stable" so that it may "guide the people", and that we "remain
have expressed ambivalent attitudes. Some of steadfast on the rule of law and the Constitution" as he recalled
them, remembering the turmoil that prevailed his rejection of the "exercise (of) power that can be Identified
before the declaration of martial law, have merely with a revolutionary government" that makes its own
expressed the fear that its lifting might law, thus:
precipitate the revival of the abuses of the
past, and provide an occasion for evil . . . Whoever he may be and whatever
elements to resurface with their usual tricks. position he may happen to have, whether in
Others say that it is about time martial law government or outside government, it is
was lifted since the peace and order situation absolutely necessary now that we look
has already stabilized and the economy seems solemnly and perceptively into the
to have been parked up. Constitution and try to discover for ourselves
what our role is in the successful
The regime of martial law has been with us implementation of that Constitution. With
for four years now. No doubt, martial law has this thought, therefore, we can agree on one
initially secured some reforms for the country thing and that is: Let all of us age, let all of us
The people were quite willing to participate then pass away as a pace in the development
in the new experiment, thrilled by the novelty of our country. but let the Constitution remain
firm and stable and let institutions grow in Perhaps, it is best that I should start by trying to disabuse the
strength from day to day, from achievement minds of those who have doubts as to whether or not I should
to achievement, and so long as that have taken part in the consideration and resolution of these
Constitution stands, whoever may the man in cases. Indeed, it would not be befitting my position in this
power be, whatever may his purpose be, that Highest Tribunal of the land for me to leave unmentioned the
Constitution will guide the people and no circumstances which have given cause, I presume, for others to
man, however, powerful he may be, will dare feel apprehensive that my participation in these proceedings
to destroy and wreck the foundation of such a might detract from that degree of faith in the impartiality that
Constitution. the Court's judgment herein should ordinarily command. In a
way, it can be said, of course, that I am the one most responsible
These are the reasons why I personally, for such a rather problematical situation, and it is precisely for
having proclaimed martial law, having been this reason that I have decided to begin this opinion with a
often induced to exercise power that can be discussion of why I have not inhibited myself, trusting most
Identified merely with a revolutionary confidently that what I have to say will be taken in the same
government, have remained steadfast or the spirit of good faith, sincerity and purity of purpose in which I
rule of law and the Constitution. 54* am resolved to offer the same.
IV. A final word on the Court's resolution of October 5, 1976 Plain honesty dictates that I should make of record here the
which in reply to the Comelec query allowed by a vote of 7 to pertinent contents of the official report of the Executive
3, judges of all courts, after office hours, "to accept invitations Committee of the Katipunan ng mga Sanggunian submitted to
to act as resource speakers under Section 5 of Presidential the Katipunan itself about the proceedings held on August 14,
Decree No. 991, as amended, as well as to take sides in 1976. It is stated in that public document that:
discussions and debates on the referendum-plebiscite questions
under Section 7 of the same Decree." 55 THE ISSUE WITH REGARDS To THE
CONVENING OF A LEGISLATIVE body
The writer with Mr. Justice Makasiar and Madame Justice came out when the President express his
Munoz Palma had dissented from the majority resolution, with desire to share his powers with other people.
all due respect, on the ground that the non-participation of
judges in such public discussions and debates on the Aware of this, a five-man Committee members of the Philippine
referendum-plebiscite questions would preserve the traditional Constitution Association (PHILCONSA) headed by Supreme
non-involvement of the judiciary in public discussions of Court Justice Antonio Barredo proposed on July 28, the
controversial issues. This is essential for the maintenance and establishment of 'Sangguniang Pambansa' or 'Batasang
enhancement of the people's faith and confidence in the Pambansa' which would help the President in the performance
judiciary. The questions of the validity of the scheduled of his legislative functions. The proposed new body will take
referendum- plebiscite and of whether there is proper the place of the interim National Assembly which is considered
submission of the proposed amendments were precisely not practical to convene at this time considering the constitution
subjudice by virtue of the cases at bar. of its membership.
The lifting of the traditional inhibition of judges from public Upon learning the proposal of Justice Barredo, the country's
discussion and debate might blemish the image and 42,000 barangay assemblies on August 1 suggested that the
independence of the judiciary. Aside from the fact that the people be consulted on a proposal to create a new legislative
fixing of a time limit for the acceptance of their courtesy body to replace the interim assembly provided for by the
resignations to avoid an indefinite state of insecurity of their Constitution. The suggestion of the barangay units was made
tenure in office still spends litigants and their relatives and through their national association, Pambansang Katipunan ng
friends as well as a good sector of the public would be hesitant mga Barangay headed by Mrs. Nora Z. Patines. She said that
to air views contrary to that of the. the people have shown in at least six instances including in the
two past referenda that they are against the convening of the
Judge. Justices Makasiar and Munoz Palma who share these interim National Assembly. She also said that since the people
views have agreed that we make them of record here, since we had ruled out the calling of such assembly and that they have
understand that the permission given in the resolution is once proposed that the President create instead the Sangguniang
nevertheless addressed to the personal decision and conscience Pambansa or a legislative advisory body, then the proposal to
of each judge, and these views may he of some guidance to create a new legislative must necessarily be referred to the
them. people.
BARREDO, J.,: concurring: 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
While I am in full agreement with the majority of my brethren
plans are afoot to convene a new legislative body.
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. 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 I must hasten to add at this point, however, that in a larger sense,
of the PKB is to create a legislative advisory council in place of the initiative for all I have done, was not altogether mine alone.
the old assembly. Two days after, August 8, the Kabataang The truth of the matter is that throughout the four years of this
Barangay held a symposium and made a stand which is the martial law government, it has always been my faith, as a result
creation of a body with full legislative powers. of casual and occasional exchanges of thought with President
Marcos, that when the appropriate time does come, the
A nationwide clamor for the holding of meeting in their President would somehow make it known that in his judgment,
respective localities to discuss more intellegently the proposal the situation has already so improved as to permit the
to create a new legislative body was made by various urban and implementation, if gradual, of the constitutionally envisioned
rural Sangguniang Bayans. 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
Numerous requests made by some members coming from 75
interim National Assembly. I have kept tract of all the public
provincial and 61 city SB assemblies, were forwarded to the
Department of Local Government and Community and private pronouncements of the President, and it was the
Development (DLGCD). 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
On August 7, Local Government Secretary, Jose A. Rono other words, in the final analysis, it was the President's own
granted the request by convening the 91 member National attitude on the matter that made it opportune for me to articulate
Executive Committee of the Pambansang Katipunan ng mga my own feelings and Ideas as to how the nation can move
Sanggunian on August 14 which was held at Session Hall, meaningfully towards normalization and to publicly raise the
Quezon City. Invited also to participate were 13 Regional issues that have been ventilated by the parties in the instant
Federation Presidents each coming from the PKB and the cases.
PKKB
I would not be human, if I did not consider myself privileged in
Actually, the extent of my active participation in the events and having been afforded by Divine Providence the opportunity to
deliberations that have culminated in the holding of the contribute a modest share in the formulation of the steps that
proposed referendum- plebiscite on October 16, 1976, which should lead ultimately to the lifting of martial law in our
petitioners are here seeking to enjoin, has been more substantial country. Indeed, I am certain every true Filipino is anxiously
and meaningful than the above report imparts. Most looking forward to that eventuality. And if for having voiced
importantly, aside from being probably the first person to the sentiments of our people, where others would have preferred
publicly articulate the need for the creation of an interim to be comfortably silent, and if for having made public what
legislative body to take the place of. the interim National every Filipino must have been feeling in his heart all these
Assembly provided for in the Transitory Provisions of the years, I should be singled out as entertaining such preconceived
Constitution, as suggested in the above report, I might say that opinions regarding the issues before the Court in the cases at
I was the one most vehement and persistent in publicly bar as to preclude me from taking part in their disposition, I can
advocating and urging the authorities concerned to directly only say that I do not believe there is any other Filipino in and
submit to the people in a plebiscite whatever amendments of the out of the Court today who is not equally situated as I am .
Constitution might be considered necessary for the
establishment of such substitute interim legislature. In the
The matters that concern the Court in the instant petitions do
aforementioned session of the Executive Committee of the
Katipunan, I discourse on the indispensability of a new interim not involve merely the individual interests of any single person
legislative body as the initial step towards the early lifting of or group of persons. Besides, the stakes in these cases affect
everyone commonly, not individually. The current of history
martial law and on the fundamental considerations why in our
that has passed through the whole country in the wake of martial
present situation a constitutional convention would be
law has swept all of us, sparing none, and the problem of
superfluous in amending the Constitution.
national survival and of restoring democratic institutions and
Ideals is seeking solution in the minds of all of us. That I have
Moreover, it is a matter of public knowledge that in a speech I preferred to discuss publicly my own thoughts on the matter
delivered at the Coral Ballroom of the Hilton Hotel in the cannot mean that my colleagues in the Court have been
evening of August 17, 1976, I denounced in no uncertain terms indifferent and apathetic about it, for they too are Filipinos.
the plan to call a constitutional convention. I reiterated the same Articulated or not, all of us must have our own preconceived
views on September 7, 1976 at the initial conference called by Ideas and notions in respect to the situation that confronts the
the Comelec in the course of the information and educational country. To be sure, our votes and opinions in the- major
campaign it was enjoined to conduct on the subject. And political cases in the recent past should more or less indicate our
looking back at the subsequent developments up to September respective basic positions relevant to the issues now before Us.
22, 1976, when the Batasang Bayan approved and the President Certainly, contending counsels cannot be entirely in the dark in
signed the now impugned Presidential Decree No. 1033, it is this regard. I feel that it must have been precisely because of
but human for me to want to believe that to a certain extent my such awareness that despite my known public participation in
strong criticisms and resolute stand against any other alternative the discussion of the questions herein involved, none of the
procedure of amending the Constitution for the purpose parties have sought my inhibition or disqualification.
intended had borne fruit.
Actually, although it may be difficult for others to believe it, I of all the people demands that only one of dependable and
have never allowed my preconceptions and personal trustworthy probity should occupy the same. Absolute integrity,
inclinations to affect the objectivity needed in the resolution of mental and otherwise, must be by everyone who is appointed
any judicial question before the Court. I feel I have always been thereto. The moral character of every member of the Court must
able to appreciate, fully consider and duly weigh arguments and be assumed to be such that in no case whatsoever. regardless of
points raised by all counsels, even when they conflict with my the issues and the parties involved, may it be feared that
previous views. I am never beyond being convinced by good anyone's life, liberty or property, much less the national
and substantial ratiocination. Nothing has delighted me more interests, would ever be in jeopardy of being unjustly and
than to discover that somebody else has thought of more improperly subjected to any kind of judicial sanction. In sum,
weighty arguments refuting my own, regardless of what or every Justice of the Supreme Court is expected to be capable of
whose interests are at stake. I would not have accepted my rising above himself in every case and of having full control of
position in the Court had I felt I would not be able to be above his emotions and prejudices, such that with the legal training
my personal prejudices. To my mind, it is not that a judge has and experience he must of necessity be adequately equipped
preconceptions that counts, it is his capacity and readiness to with, it would be indubitable that his judgment cannot be but
absorb contrary views that are indispensable for justice to objectively impartial, Indeed, even the appointing power, to
prevail. That suspicions of prejudgment may likely arise is whom the Justices owe their positions, should never hope to be
unavoidable; but I have always maintained that whatever unduly favored by any action of the Supreme Court. All
improper factors might influence a judge will unavoidably appointments to the Court are based on these considerations,
always appear on the face of the decision. In any event, is there hence the ordinary rules on inhibition and disqualification do
better guarantee of justice when the preconceptions of a judge not have to be applied to its members.
are concealed?
With the preliminary matter of my individual circumstances out
Withal, in point of law, I belong to the school of thought that of the way, I shall now address myself to the grave issues
regards members of the Supreme Court as not covered by the submitted for Our resolution.
general rules relative to disqualification and inhibition of judges
in cases before them. If I have in practice actually refrained -I-
from participating in some cases, it has not been because of any
legal ground founded on said rules, but for purely personal
In regard to the first issue as to whether the questions posed in
reasons, specially because, anyway, my vote would not have
the petitions herein are political or justiciable, suffice it for me
altered the results therein. to reiterate the fundamental position I took in the Martial Law
cases,1 thus
It is my considered opinion that unlike in the cases of judges in
the lower courts, the Constitution does not envisage compulsory
As We enter the extremely delicate task of
disqualification or inhibition in any case by any member of the
resolving the grave issues thus thrust upon
Supreme Court. The Charter establishes a Supreme Court Us. We are immediately encountered by
"composed of a Chief Justice and fourteen Associate Justices", absolute verities to guide Us all the way. The
with the particular qualifications therein set forth and to be
first and most important of them is that the
appointed in the manner therein provided. Nowhere in the
Constitution (Unless expressly stated
Constitution is there any indication that the legislature may
otherwise, all references to the Constitution
designate by law instances wherein any of the justices should
in this discussion are to both the 1935 and
not or may not take part in the resolution of any case, much less 1973 charters, since, after all, the pertinent
who should take his place. Members of the Supreme Court are provisions are practically Identical in both is
definite constitutional officers; it is not within the power of the
the supreme law of the land. This means
lawmaking body to replace them even temporarily for any
among other things that all the powers of the
reason. To put it the other way, nobody who has not been duly
government and of all its officials from the
appointed as a member of the Supreme Court can sit in it at any President down to the lowest emanate from it.
time or for any reason. The Judicial power is vested in the None of them may exercise any power unless
Supreme Court composed as the Constitution ordains - that
it can be traced thereto either textually or by
power cannot be exercised by a Supreme Court constituted
natural and logical implication. "The second
otherwise. And so, when as in the instant where, if any of the
is that it is settled that the Judiciary
member of Court is to abstain from taking part, there would be
provisions of the Constitution point to the
no quorum - and no court to render the decision - it is the Supreme Court as the ultimate arbiter of all
includible duty of all the incumbent justices to participate in the conflicts as to what the Constitution or any
proceedings and to cast their votes, considering that for the
part thereof means. While the other
reasons stated above, the provisions of Section 9 of the
Departments may adopt their own
Judiciary Act do not appear to conform with the concept of the
construction thereof, when such construction
office of Justice of the Supreme Court contemplated in the
is challenged by the proper party in an
Constitution. appropriate case wherein a decision would be
impossible without determining the correct
The very nature of the office of Justice of the Supreme Court as construction, the Supreme Court's word on
the tribunal of last resort and bulwark of the rights and liberties the matter controls.
xxx xxx xxx very nature, when one studiously considers
the basic functions and responsibilities
xxx xxx xxx entrusted by the charter to each of the great
Departments of the government. To cite an
obvious example, the protection, defense and
The fifth is that in the same manner that the
preservation of the state against internal or
Executive power conferred upon the
external aggression threatening its very
Executive by the Constitution is complete,
total and unlimited, so also, the judicial existence is far from being within the ambit
power vested in the Supreme Court and the of judicial responsibility. The distinct role
then of the Supreme Court of being the final
inferior courts, is the very whole of that
arbiter in the determination of constitutional
power, without any limitation or
controversies does not have to be asserted in
qualification.
such contemplated situations, thereby to give
way to the ultimate prerogative of the people
xxx xxx xxx articulated thru suffrage or thru the acts of
their political representatives they have
xxx xxx xxx elected for the purpose.
From these incontrovertible postulates, it Indeed, these fundamental considerations are the ones that lie at
results, first of all, that the main question the base of what is known in American constitutional law as the
before Us is not in reality one of jurisdiction, political question doctrine, which in that jurisdiction is
for there can be no conceivable controversy, unquestionably deemed to be part and parcel of the rule of law,
especially one involving a conflict as to the exactly like its apparently more attractive or popular opposite,
correct construction of the Constitution, that judicial activism, which is the fullest exertion of judicial power,
is not contemplated to be within the judicial upon the theory that unless the courts intervene injustice might
authority of the courts to hear and decide. The prevail. It has been invoked and applied by this Court in varied
judicial power of the courts being unlimited forms and mode of projection in several momentous instances
and unqualified, it extends over all situations in the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs.
that call for the as certainment and protection Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil.
of the rights of any party allegedly violated, 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77
even when the alleged violator is the highest Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Cabin vs.
official of the land or the government itself. Francisco, 88 Phil. 654; Montenegro vs. Castaneda, 91 Phil.
It is, therefore, evidence that the Court's 882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution of
jurisdiction to take cognizance of and to Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is
decide the instant petitions on their merits is the main support of the stand of the Solicitor General on the
beyond challenge. 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
In this connection, however, it must be borne nomenclatures themselves imply, activism and self- restraint
in mind that in the form of government are both subjective attitudes, not inherent imperatives. The
envisaged by the framers of the Constitution choice of alternatives in any particular eventuality is naturally
and adopted by our people, the Court's dictated by what in the Court's considered opinion is what the
indisputable and plenary authority to decide Constitution envisions should be by in order to accomplish the
does not necessarily impose upon it the duty objectives of government and of nationhood. And perhaps it
to interpose its fiat as the only means of may be added here to avoid confusion of concepts, that We are
settling the conflicting claims of the parties not losing sight of the traditional approach based on the doctrine
before it. It is ingrained in the distribution of of separation of powers. In truth, We perceive that even under
powers in the fundamental law that hand in such mode of rationalization, the existence of power is
hand with the vesting of the judicial power secondary, respect for the acts of a co-ordinate, co-equal and
upon the Court, the Constitution has coevally independent Department being the general rule, particularly
conferred upon it the discretion to determine, when the issue is not encroachment of delimited areas of
in consideration of the constitutional functions but alleged abuse of a Department's own basic
prerogatives granted to the other prerogatives. (59 SCRA, pp. 379-383.)
Departments, when to refrain from imposing
judicial solutions and instead defer to the Applying the foregoing considerations to the cases at bar, I hold
judgment of the latter. It is in the very nature that the Court has jurisdiction to pass on the merits of the
of republican governments that certain various claims of petitioners. At the same time, however, I
matters are left in the residual power of the maintain that the basic nature of the issues herein raised requires
people themselves to resolve, either directly that the Court should exercise its constitutionally endowed
at the polls or thru their elected prerogative to refrain from exerting its judicial authority in the
representatives in the political Departments premises.
of the government. And these reserved
matters are easily distinguishable by their
Stripped of incidental aspects, the constitutional problem that Assuming We have to inquire into the merits of the issue
confronts Us stems from the absence of any clear and definite relative to the constitutional authority behind the projected
express provision in the Charter applicable to the factual milieu amendment of the Charter in the manner provided in
herein involved. The primary issue is, to whom, under the Presidential Decree 1033, I hold that in the peculiar situation in
circumstances, does the authority to propose amendments to the which the government is today, it is not incompatible with the
Constitution property belong? To say, in the light of Section 15 Constitution for the President to propose the subject
of Article XVII of the Charter, that that faculty lies in the amendments for ratification by the people in a formal plebiscite
interim National Assembly is to beg the main question. Indeed, under the supervision of the Commission on Elections. On the
there could be no occasion for doubt or debate, if it could ' only contrary, in the absence of any express prohibition in the letter
be assumed that the interim National Assembly envisaged in of the Charter, the Presidential Decree in question is entirely
Sections 1 and 2 of the same Article XVII may be convoked. consistent with the spirit and the principles underlying the
But precisely, the fundamental issue We are called upon to Constitution. The correctness of this conclusion should become
decide is whether or not it is still constitutionally possible to even more patent, when one considers the political
convene that body. And relative to that question, the inquiry developments that the people have brought about since the
centers on whether or not the political developments since the ratification of the Constitution on January 17,1973.
ratification of the Constitution indicate that the people have in
effect enjoined the convening of the interim National Assembly I consider it apropos at this juncture to repeat my own words in
altogether. On this score, it is my assessment that the results of a speech I delivered on the occasion of the celebration of Law
the referenda of January 10-15, 1973, July 27-28, 1973 and Day on September 18, 1975 before the members of the
February 27, 1975 clearly show that the great majority of our Philippine Constitution Association and their guests:
people, for reasons plainly obvious to anyone who would
consider the composition of that Assembly, what with its more
To fully comprehend the constitutional
than 400 members automatically voted into it by the
situation in the Philippines today, one has to
Constitutional Convention together with its own members, are
bear in mind that, as I have mentioned earlier,
against its being convoked at all. the martial law proclaimed under the 1935
Constitution overtook the drafting of the new
Whether or not such a manifest determination of the sentiments charter by the Constitutional Convention of
of the people should be given effect without a formal 1971. It was inevitable, therefore, that the
amendment of the Constitution is something that constitutional delegates had to take into account not only
scholars may endlessly debate on. What cannot be disputed, the developments under it but, most of all, its
however, is that the government and the nation have acquiesced declared objectives and what the President, as
to, it and have actually operated on the basis thereof. its administrator, was doing to achieve them.
Proclamation 1103 which, on the predicate that the In this connection, it is worthy of mention
overwhelming majority of the people desire that the interim that an attempt to adjourn the convention was
Assembly be not convened, has ordained the suspension of its roundly voted down to signify the
convocation, has not been assailed either judicially or otherwise determination of the delegates to finish
since the date of its promulgation on January 17, 1973. earliest their work, thereby to accomplish the
mission entrusted to them by the people to
In these premises, it is consequently the task of the Court to introduce meaningful reforms in our
determine what, under these circumstances, is the constitutional government and society. Indeed, the
relevance of the interim National Assembly to any proposal to constituent labors gained rapid tempo, but in
amend the Constitution at this time. It is my considered opinion the process, the delegates were to realize that
that in resolving that question, the Court must have to grapple the reforms they were formulating could be
with the problem of what to do with the will of the people, best implemented if the martial law powers of
which although manifested in a manner not explicitly provided the President were to be allowed to subsist
for in the Constitution, was nevertheless official, and reliable, even after the ratification of the Constitution
and what is more important clear and unmistakable, despite the they were approving. This denouement was
known existence of well-meaning, if insufficiently substantial unusual. Ordinarily, a constitution born out of
dissent. Such being the situation, I hold that it is not proper for a crisis is supposed to provide all the needed
the Court to interpose its judicial authority against the evident cures and can, therefore, be immediately in
decision of the people and should leave it to the political full force and effect after ratification. Not so,
department of the government to devise the ways and means of with our 1973 Constitution, Yes, according to
resolving the resulting problem of how to amend the the Supreme Court, 'there is no more judicial
Constitution, so long as in choosing the same, the ultimate obstacle to the new Constitution being
constituent power is left to be exercised by the people considered in force and effect', but in truth, it
themselves in a well- ordered plebiscite as required by the is not yet so in full. Let me explain.
fundamental law.
To begin with, in analyzing the new Constitution, we must be
-2- 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 In the foregoing disquisition, I purposely made no mention of
only for the transition of our government from the presidential the referendum of February 27, 1975. It is important to note,
form under the past charter to a parliamentary one as envisaged relative to the main issue now before Us, that it was originally
in the new fundamental law, but also to institutionalize, planned to ask the people in that referendum whether or not they
according to the President, the reforms introduced thru the would like the interim National Assembly to convene, but the
exercise of his martial law powers. Stated differently, the Comelec to whom the task of preparing the questions was
transitory provisions, as it has turned out, has in effect assigned was prevailed upon not to include any -such question
established a transition government, not, I am sure, perceived anymore, precisely because it was the prevalent view even
by many. It is a government that is neither presidential nor among the delegates to the Convention as well as the members
parliamentary. It is headed, of course, by President Marcos who of the old Congress concerned that that matter had already been
not on retains all his powers under the 1935 Constitution but finally resolved in the previous referenda of January and July
enjoys as well those of the President and the Prime Minister 1973 in the sense that. the Assembly should not be convened
under the new Constitution. Most importantly, he can and does comparable to res adjudicata.
legislate alone. But to be more accurate, I should say that he
legislates alone in spite of the existence of the interim National It is my position that as a result of the political developments
Assembly unequivocally ordained by the Constitution, for the since January 17, 1973 the transitory provisions envisioning the
simple reason that he has suspended the convening of said convening of the interim National Assembly have been
assembly by issuing Proclamation No. 1103 purportedly 'in rendered legally inoperative. There is no doubt in my mind that
deference to the sovereign will of the Filipino people' expressed for the President to convoke the interim National Assembly as
in the January 10-15, 1973 referendum. such would be to disregard the will of the people - something
no head of a democratic republican state like ours should do.
Thus, we have here the unique case of a qualified ratification. And I find it simply logical that the reasons that motivated the
The whole Constitution was submitted for approval or people to enjoin the convening of the Assembly - the unusually
disapproval of the people, and after the votes were counted and large and unmanageable number of its members and the
the affirmative majority known, we were told that the resulting controversial morality of its automatic composition consisting
ratification was subject to the condition that the interim of all the incumbent elective national executive and legislative
National Assembly evidently established in the Constitution as officials under the Old Constitution who would agree to join it
the distinctive and indispensable element of a parliamentary and the delegates themselves to the Convention who had voted
form of government should nevertheless be not convened and in favor of the Transitory Provisions - apply not only to the
that no elections should be held for about seven years, with the Assembly as an ordinary legislature but perhaps more to its
consequence that we have now a parliamentary government being a constituent body. And to be more realistic, it is but
without a parliament and a republic without any regular election natural to conclude that since the people are against politicians
of its officials. And as you can see, this phenomenon came into in the old order having anything to do with the formulation of
being not by virtue of the Constitution but of the direct mandate national policies, there must be more reasons for them to frown
of the sovereign people expressed in a referendum. In other on said politicians taking part in amendment of the fundamental
words, in an unprecedented extra-constitutional way, we have law, specially because the particular amendment herein
established, wittingly or unwittingly, a direct democracy involved calls for the abolition of the interim National
through the Citizens Assemblies created by Presidential Decree Assembly to which they belong and its substitution by the
No. 86, which later on have been transformed into barangays, a Batasang Pambansa.
system of government proclaimed by the President as 'a real
achievement in participatory democracy.' What I am trying to It is argued that in law, the qualified or conditional ratification
say, my friends, is that as I perceive it, what is now known as of a constitution is not contemplated. I disagree. It is
constitutional authoritarianism means, in the final analysis, that inconsistent with the plenary power of the people to give or
the fundamental source of authority of our existing government withhold their assent to a proposed Constitution to maintain that
may not be necessarily found within the four corners of the they can do so only wholly. I cannot imagine any sound
Constitution but rather in the results of periodic referendums principle that can be invoked to support the theory that the
conducted by the Commission on Elections in a manner well proposing authority can limit the power of ratification of the
known to all of us This, as I see it, is perhaps what the President people. As long as there are reliable means by which only
means by saying that under the new Constitution he has extra- partial approval can be manifested, no cogent reason exists why
ordinary powers independently of martial law - powers the sovereign people may not do so. True it is that no proposed
sanctioned directly by the people which may not even be read Constitution can be perfect and it may therefore be taken with
in the language of the Constitution. in brief, when we talk of the the good and the bad in it, but when there are feasible ways by
rule of law nowadays, our frame of reference should not which it can be determined which portions of it, the people
necessarily be the Constitution but the outcome of referendums disapprove. it would be stretching technicality beyond its
called from time to time by the President. The sooner we imbibe purported office to render the final authority - the people
this vital concept the more intelligent will our perspective be in impotent to act according to what they deem best suitable to
giving our support and loyalty to the existing government. What their interests.
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 In any event, I feel it would be of no consequence to debate at
- do not in reality have a dictatorship but an experimental type length regarding the legal feasibility of qualified ratification.
of direct democracy."
Proclamation 1103 categorically declares that:
WHEREAS, fourteen million nine hundred the department exercising the legislative faculty be the one to
seventy six thousand five hundred sixty-one likewise perform the constituent function that was attached to
(14,976.561) members of all the Barangays the body rendered impotent by the people's mandate.
voted for the adoption of the proposed Incidentally, I reject most vehemently the proposition that the
Constitution, as against seven hundred forty- President may propose amendments to the Constitution in the
three thousand eight hundred sixty-nine exercise of his martial law powers. Under any standards, such a
(743,869) who voted for its rejection; but a suggestion cannot be reconciled with the Ideal that a
majority of those who approved the new Constitution is the free act of the people.
Constitution conditioned their votes on the
demand that the interim National Assembly It was suggested during the oral, argument that instead of
provided in its Transitory Provisions should extending his legislative powers by proposing the amendment
not be convened. to create a new legislative body, the President should issue a
decree providing for the necessary apportionment of the seats
and in consequence, the President has acted accordingly by not in the Regular National Assembly and call for an election of the
convening the Assembly. The above factual premises of members thereof and thus effect the immediate normalization
Proclamation 1103 is not disputed by petitioners. Actually, it is of the parliamentary government envisaged in the Constitution.
binding on the Court, the same being a political act of a While indeed procedurally feasible, the suggestion overlooks
coordinate department of the government not properly assailed the imperative need recognized by the constitutional convention
as arbitrary or whimsical. At this point, it must be emphasized as may be inferred from the obvious purpose of the transitory
in relation to the contention that a referendum is only provisions, for a period of preparation and acquaintance by all
consultative, that Proclamation 1103, taken together with concerned with the unfamiliar distinctive features and practices
Proclamation 1102 which proclaimed the ratification of the of the parliamentary system. Accustomed as we are to the
Constitution, must be accorded the same legal significance as presidential system, the Convention has seen to it that there
the latter proclamation, as indeed it is part and parcel if the Act should be an interim parliament under the present leadership,
of ratification of the Constitution, hence not only persuasive but which will take the corresponding measures to effectuate the
mandatory. In the face of the incontrovertible fact that the efficient and smooth transition from the present system to the
sovereign people have voted against the convening of the new one. I do not believe this pattern set by the convention
interim National Assembly, and faced with the problem of should be abandoned.
amending the Constitution in order precisely to implement the
people's rejection of that Assembly, the problem of The alternative of calling a constitutional convention has also
constitutional dimension that confronts Us, is how can any such been mentioned. But, in the first place, when it is considered
amendment be proposed for ratification by the people? that whereas, under Section 1 (1) and (2) of Article XVI, the
regular National Assembly may call a Constitutional
To start with, it may not be supposed that just because the office Convention or submit such a call for approval of the people,
or body designed by the constitutional convention to perform Section 15 of Article XVII, in reference to interim National
the constituent function of formulating proposed amendments Assembly, does not grant said body the prerogative of calling a
has been rendered inoperative by the people themselves, the convention, one can readily appreciate that the spirit of the
people have thereby foreclosed the possibility of amending the Constitution does not countenance or favor the calling of a
Constitution no matter how desirable or necessary this might convention during the transition, if only because such a
be. In this connection, I submit that by the very nature of the procedure would be time consuming, cumbersome and
office of the Presidency in the prevailing scheme of government expensive. And when it is further noted that the requirement as
we have - it being the only political department of the to the number of votes needed for a proposal is only a majority,
government in existence - it is consistent with basic principles whereas it is three-fourths in respect to regular Assembly, and,
of constitutionalism to acknowledge the President's authority to relating this point to the provision of Section 2 of Article XVI
perform the constituent function, there being no other entity or to the effect that all ratification plebiscites must be held "not
body lodged with the prerogative to exercise such function. later than three months after the approval" of the proposed
amendment by the proposing authority, the adoption of the most
There is another consideration that leads to the same simple manner of amending the charter, as that provided for in
conclusion. It is conceded by petitioners that with the non- the assailed Presidential Decree 1033 suggests itself as the one
convening of the interim Assembly, the legislative authority has most in accord with the intent of the fundamental law.
perforce fallen into the hands of the President, if only to avoid
a complete paralysis of law-making and resulting anarchy and There is nothing strange in adopting steps not directly based on
chaos. It is likewise conceded that the provisions of Section 3 the letter of the Constitution for the purpose of amending or
(2) of Article XVII invest the President with legislative power changing the same. To cite but one important precedent, as
for the duration of the transition period. From these premises, it explained by Mr. Justice Makasiar in his concurring opinion in
is safe to conclude that in effect the President has been Javellana 2, the present Constitution of the United States was
substituted by the people themselves in place of the interim neither proposed nor ratified in the manner ordained by the
Assembly. Such being the case, the President should be deemed original charter of that country, the Articles of Confederation
as having been granted also the cognate prerogative of and Perpetual Union.
proposing amendments to the Constitution. In other words, the
force of necessity and the cognate nature of the act justify that
In brief. if the convening and operation of the interim National Ratification by the people is all that is indispensable to validate
Assembly has been effectuated through a referendum-plebiscite an amendment. Once ratified, the method of making the
in January, 1973, and ratified expressly and impliedly in two proposal and the period for submission become relevant.
subsequent referenda, those of July, 1973 and February, 1975,
why may not a duly held plebiscite suffice for the purpose of The contrary view negates the very essence of a republican
creating a substitute for that Assembly? It should be borne in democracy - that the people are sovereign - and renders
mind that after all, as indicated in the whereas of the impugned meaningless the emphatic declaration in the very first provision
Presidential Decree, actually, the proposed amendments were of Article II of the 1973 Constitution that the Philippines is a
initiated by the barangays and sanggunian members. In other republican state, sovereignty resides in the people and all
words, in submitting the amendments for ratification, the government authority emanates from them. It is axiomatic that
President is merely acting as the conduit thru whom a sovereignty is illimitable The representatives cannot dictate to
substantial portion of the people, represented in the Katipunan the sovereign people. They may guide them; but they cannot
ng Mga Sanggunian, Barangay at Kabataang Barangay, seek the supplant their judgment, Such an opposite view likewise
approval of the people as a whole of the amendments in distrusts the wisdom of the people as much as it despises their
question. If all these mean that the sovereign people have intelligence. It evinces a presumptuous pretension to
arrogated unto themselves the functions relative to the intellectual superiority. There are thousands upon thousands
amendment to the Constitution, I would regard myself as totally among the citizenry, who are not in the public service, who are
devoid of legal standing to question it, having in mind that the more learned and better skilled than many of their elected
most fundamental tenet on which our whole political structure representatives.
rests is that "sovereignty resides in the people and all
government authority emanates from them." Moreover, WE already ruled in Aquino, et al. vs- Comelec, et
al. (L 40004, Jan. 31, 1975, 62 SCRA 275, 298-302) that the
In the light of the foregoing considerations, I hold that President as enforcer or administrator of martial rule during the
Presidential Decree No. 1033 does not infringe the Constitution, period of martial law can legislate; and that he has the discretion
if only because the specific provision it is supposed to infringe as to when the convene the interim National Assembly
does not exist in legal contemplation since it was coevally made depending on prevailing conditions of peace and order. In view
inoperative when the people ratified the Constitution on January of the fact that the interim National Assembly has not been
17, 1973. I am fully convinced that there is nothing in the convoked in obedience to the desire of the people clearly
procedure of amendment contained in said decree that is expressed in the 1973 referenda, the President therefore remains
inconsistent with the fundamental principles of the lone law-making authority while martial law subsists.
constitutionalism. On the contrary, I find that the Decree, in Consequently, he can also exercise the power of the interim
issue conforms admirably with the underlying tenet of our National Assembly to propose amendments to the New
government - the sovereignty and plenary power of the people. Constitution (Sec. 15,,Art. XVII If, as conceded by petitioner
Vicente Guzman (L-44684), former delegate to the 1971
On the issue of whether or not October 16, 1976 is too Constitutional Convention which drafted the 1973 Constitution.
proximate to enable the people to sufficiently comprehend the the President, during the period of martial law, can call a
issues and intelligently vote in the referendum and plebiscite set constitutional convention for the purpose, admittedly a
by Presidential Decree 1033, all I can say is that while perhaps constituent power, it stands to reason that the President can
my other colleagues are right in holding that the period given to likewise legally propose amendments to the fundamental law.
the people is adequate, I would leave it to the President to
consider whether or not it would be wiser to extend the same. ANTONIO, J., concurring:
Just to avoid adverse comments later I wish the President orders
a postponement. But whether such postponement is ordered or
I
not, date of the referendum- plebiscite anywhere from October
16, 1976 to any other later date, would be of no vital import.
At the threshold, it is necessary to clarify what is a "political
question". It must be noted that this device has been utilized by
In conclusion, I vote to dismiss all the three petitions before Us.
the judiciary "to avoid determining questions it is ill equipped
to determine or that could be settled in any event only with the
MAKASIAR, J., concurring and dissenting: effective support of the political branches." 1 According to
Weston, judges, whether "personal representatives of a truly
Since the validity or effectivity of the proposed amendments is sovereign king, or taking their seats as the creatures of a largely
to be decided ultimately by the people in their sovereign popular sovereignty speaking through a written constitution,
capacity, the question is political as the term is defined in derive their power by a delegation, which clearly or obscurely
Tanada, et al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar as the case may be, deliminates and delimits their delegated
to any judicial inquiry, for the reasons stated in Our opinion in jurisdiction.* * * Judicial questions * * * are those which the
Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, sovereign has set to be decided in the courts. Political questions,
et al. vs. Executive Secretary, et al. (L,36164); Roxas, et al. vs similarly, are those which the sovereign has entrusted to the so-
Executive Secretary, et al. (L-36165); Monteclaro, etc., et al. vs' called political departments of government or has reserved to
Executive Secretary, et al. (@36236); and Ditag et al. vs. be settled by its own extra-government or has reserved to be
Executive Secretary, et al. (L-W283, March 31, 1973, 50 SCRA settled by its own extra-governmental action."2 Reflecting a
30, 204-283). The procedure for amendment is not important similar concept, this Court has defined a "political question" as
a "matter which is to be exercised by the people in their primary In their concurring opinions, Justices Black, Roberts,
political capacity or that has been specifically delegated to some Frankfurter and Douglas stressed that:
other department or particular officer of the government, with
discretionary power to act." 3 In other words, it refers to those The Constitution grants Congress exclusive
questions which, under the Constitution, are to be decided by power to control submission off
the people in their sovereign capacity, or in regard to which full constitutional amendments. Final
discretionary authority has been delegated to the legislative or determination by Congress their ratification
executive branch of government.4 by three-fourths of the States has taken place
'is conclusive upon the courts.' In the exercise
In determining whether an issue falls within the political of that power, Congress, of course, is
question category, the absence of satisfactory creterion for a governed by the Constitution. However, A
judicial determination or the appropriateness of attributing whether submission, intervening procedure
finality to the action of the political departments of government for Congressional determination of
is a dominant consideration. This was explained by Justice ratification conforms to the commands of the
Brennan in Baker v. Carr,5 thus : Constitution, call for decisions by apolitical
department of questions of a t@ which this
Prominent on the surface of any case held to Court has frequently designated 'political.'
involve political question is found a textually And decision of a 'political question' by the
demonstrable constitutional lack of judicially political department' to which the
discoverrable and manageable standards for Constitution has committed it 'conclusively
resolving it; or the impossibility of deciding binds the judges, as well as all other officers,
without an initial policy determination of a citizens and subjects of ... government.
kind clearly for non-judicial discretion; or the Proclamation under authority of Congress
impossibility of a court's undertaking that an amendment has been ratified will
independent resolution without expressing carry with it a solemn assurance by the
lack of the respect due coordinate branches of Congress that ratification has taken place as
government; or an unusual need for the Constitution commands. Upon this
unquestioning adherence to a political assurance a proclaimed amendment must be
decision already made; or the potentiality of accepted as a part of the Constitution,
embarrassment from from multifarious learning to the judiciary its traditional
pronouncements by various departments on authority of interpretation. To the extent that
one question. . . . the Court's opinion in the present case even
by implieding assumes a power to make
judicial interpretation of the exclusive
To decide whether a matter has in a measure been committed
constitutional authority of Congress over
by the Constitution to another branch of government or retained
be the people to be decided by them in their sovereign capacity, submission and by ratification of
or whether that branch exceeds whatever authority has been amendments, we are unable to agree.
committed, is indeed a delicate exercise in constitutional
interpretation. Relying on this doctrine enunciated in Coleman v. Miller supra
this Court, in Mabanag v. Lopez Vitol, 7 speaking through Mr.
In Coleman v. Miller, 6 the United States Supreme Court held Justice Pedro Tuason, ruled that the process of constitutional
that the efficacy of the ratification by state legislatures of a amendment, involving proposal and ratification, is a political
question. In the Mabang case, the petitioners sought to prevent
constitutional amendment is a political question. On the
the enforcement of a resolution of Congress proposing the
question of whether the State Legislature could constitutionally
"Parity Amendment" to the Philippine Constitution on the
relative an amendment, after the same had been previously
rejected by it, it was held that the ultimate authority over the ground that it had not been approved by the three-fourths vote
question was in Congress in the exercise of its control over the of all the members of each house as required be Article XV of
the 1935 Constitution. It was claimed that three (3) Senators and
promulgation of the adoption of the amendment. And in
eight (8) members of the House of Representatives had been
connection with the second question of whether the amendment
suspended and that their membership was not considered in the
has lost its, vitality through the lapse of time, the Court held that
determination of the three- fourths %- ore In dismissing the
the question was likewise political, involving "as it does ... an
appraisal of a great variety of relevant conditions, political, petition on the ground that the question of the validity of the
social and economic, which can hardly be said to be within the proposal was political, the Court stated:
appropriate range of evidence receivable in a court of justice
and as to which it would be an extravagant extension of juridical "If ratification of an amendment is a political question, a
authority to assert judicial notice as the basis of deciding a proposal which leads to ratification has to be a political
controversy with respect to the validity of an amendment question. The question to steps complement each other in a
actually ratified. On the other hand, these conditions are scheme intended to achieve a single objective. It is to be noted
appropriate for the consideration of the political departments of that amendatory process as provided in Section I of Article XV
the Government. The questions they involve are essentially of the Philippine Constitution 'consists of (only) two distinct
political and not justiciable." ' parts: proposal and ratification.' There is no logic in attaching
political character to one and withholding that character from conditioned their votes on the demand that the interim National
the other. Proposal to amend the Constitution is a highly Assembly provided in the Transitory Provisions should not be
political function performed by the Congress in its sovereign and the President "in deference to the sovereign will of the
legislative capacity and committed to its charge by the Filipino people" declared that the convening of said body shall
Constitution itself. ..." (At pages 4-5, Italics supplied.) be suspended.12 As this Court observed in the Aquino case:
It is true that in Gonzales v. Comelec, 8 this Court held that "the His decision to defer the initial convocation
issue whether or not a Resolution of Congress, acting as a of the byiitttit National Assembly was
constituent assembly - violates the Constitution is essentially supported by the sovereign people at the by
justiciable, not political, and hence, subject to judicial review." referendum in January, 1973 when the people
What was involved in Gonzales, however, was not a proposed voted to postpone the convening of the
What was involved in Gonzales, however, was not a proposed interim National Assembly until after at least
amendment to the Constitution but an act of seven (7) years from the approval of the new
Congress,9 submitting proposed amendments to the Constitution. And the reason why the same
Constitution. Similarly, in Tolentino v. Commission an question was eliminated from the questions to
Elections, 10 what was involved was not the validity of the be submitted at the referendum on February
proposal to lower the voting age but rather that of the resolution 27, 1975, is that even some members of the
of the Constitutional Convention submitting the proposal for Congress and delegates of the Constitutional
ratification. The question was whether piecemeal amendments Convention, who are already byjso ofitto
to the Constitution could submitted to the people for approval members of the intetini National Assembly
or rejection. are against such inclusion; because the issue
was already bycciled in the January, 1973
II referendum by the sovereign people
indicating thereby their disenchantment with
Here, the point has been stressed that the President is acting as any Assembly as the former Congress failed
to institutionalize the reforms they demanded
agent for and in behalf of the people in proposing the
and wasted public funds through endless
amendment. there can be no question that in the referendums of
debates without relieving the suffering of the
January, 1973 and in the subsequent referendums the people
general mass of citizenry (p. 302.) The action
had clearly and categorically rejected the calling of the interim
National Assembly. As stated in the main opinion, the Lupang of the President in suspending the convening
Tagapagpaganap of the Katipunan ng mga Sanggunian, the of the interim National Assembly has met the
overwhelming approval of the people in
Pambansang Katipunan ng mga Barangay, representing 42,000
subsequent referenda.
barangays, the Kabataang Barangay organizations and the
various sectoral groups had proposed the replacement of the
interim National Assembly. These barangays and the Since it was the action by the people that gave binding force and
Sanggunian assemblies are effective instrumentalities through effect to the new Constitution, then it must be accepted as a
which the desires of the people are articulated and expressed. necessary consequence that their objection against the
The Batasang Bayan (Legislative Council), composed of immediate convening of the interim National Assembly must be
nineteen (19) cabinet members and nine (9) officials with respected as a positive mandate of the sovereign.
cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of the Katipunan ng In the Philippines, which is a unitary state, sovereignty "resides
mga Sangguniang Bayani voted in their special session to in the people and all government authority emanates from
submit directly to the people in a plebiscite on October 16, 1976 them."13 The term "People" as sovereign is comprehensive in
the afore-mentioned constitutional amendments. Through the its context. The people, as sovereign creator of all political
Pambansang Katipunan by Barangay and the Pampurok ng reality, is not merely the enfranchised citizens but the political
Katipunan Sangguniang Bayan, the people have expressed their unity of the people. 14 It connotes, therefore, a people which
desire not only to abolish the interim National Assembly, but to exists not only in the urgent present but in the continuum of
replace it with a more representative body acceptable to them history. The assumption that the opinion of The People as voters
in order to effect the desirable constitutional changes necessary can be treated as the expression of the interests of the People as
to hasten the political evolution of the government towards the a historic community was, to the distinguished American
parliamentary system, while at the same time ensuring that the journalist and public philosopher, Walter Lipunan,
gains of the New Society, which are vital to the welfare of the unwarranted.
people, shall be safeguarded. The proposed constitutional
amendments, therefore, represent a consensus of the people. Because of the discrepancy between The
People as Voters and the People as the
It would be futile to insist that the intemi National Assembly corporate nation, the voters have no title to
should have been convened to propose those amendments consider themselves the proprietors of the
pursuant to Section 15 of Article XVII of the Constitution. This commonwealth and to claim that their
Court, in the case of Aquino v. Commission or Elections,11 took interests are Identical to the public interest. A
judicial notice of the fact that in the referendum of January, prevailing plurality of the voters are not The
1973, a majority of those who approved the new Constitution People. The claim that they are is a bogus title
invoked to justify the usurpation of the Accordingly, without venturing to rule on
executive power by representative assemblies whether or not the President is vested with
and the intimidation of public men by constituent power - as it does not appear
demagogue politicians. In fact demagoguery necessary to do so in the premises - the
can be described as the sleight of hand by proposals here challenged, being acts of the
which a faction of The People as voters are sovereign people no less, cannot be said to be
invested with the authority of The People. afflicted with unconstitutionality. A fortiori,
That is why so many crimes are committed in the concomitant authority to call a plebiscite
the People's name 15 and to appropriate funds therefor is even less
vulnerable not only because the President, in
In Gonzales v. Comelec, supra, the Court clearly emphasized exercising said authority, has acted as a mere
that the power to propose amendments or to amend the ofiffet byf of the people who made the
Constitution is part of the inherent power of the people as the proposals, but likewise because the said
repository of sovereignty in a republican state. While Congress authority is legislative in nature rather than
may propose amendments to the Constitution, it acts pursuant constituent.
to authority granted to it by the people through the Constitution.
Both the power to propose and the authority to approve, This is but a recognition that the People of the
therefore, inhere in the people as the bearer of the Constitution Philippines have the inherent, sole and
making power. exclusive right of regulating their own
government, and of altering or abolishing
Absent an interim National Assembly upon whom the people, their Constitution whenever it may be
through the Constitution, have delegated the authority to necessary to their safety or happiness. There
exercise constituent powers, it follows from necessity that appears to be no justification, under the
either the people should exercise that power themselves or existing, circumstances, for a Court to create
through any other instrumentality they may choose. For Law, by implication a limitation on - the sovereign
like Nature, abhors a vacuum (natural vacuum abhorret). power of the people. As has been clearly
explained in a previous case:
The question then is whether the President has authority to act
for the people in submitting such proposals for ratification at There is nothing in the nature of the
the plebiscite of October 16. The political character of the submission which should cause the free
question is, therefore, particularly manifest, considering that exercise of it to be obstructed, or that could
ultimately it is the people who will decide whether the President render it dangerous to the stability of the
has such authority. It certainly involves a matter which is to be government; because the measure derives all
exercised by the people in their sovereign capacity, hence, it is its vital force from the action of the people at
essentially political, not judicial. the ballot box, and there can never be danger
in submitting in an established form to a free
people, the proposition whether they will
While it is true that the constituent power is not to be confuse
change their fundamental law The means
with legislative power in general because the prerogative to
provided for the exercise of their Sovereign
propose amendments is not embraced within the context of
right of changing their constitution should
ordinary lawmaking, it must be noted that the proposals to be
submitted for ratification in the forthcoming referendum are, in receive such a construction as not to trammel
the final analysis, actually not of the President but directly of the exercise of the right. Difficulties and
embarrassments in its exercise are in
the people themselves, speaking through their authorized
derogation of the right of free government,
instrumentalities.
which is inherent in the people; and the best
security against tumult and revolution is the
As the Chief Justice aptly stated in his concurring opinion in free and unobstructed privilege to the people
this case: of the State to change their constitution in the
mode prescribed by the instrument.
... The President merely formalized the said
proposals in Presidential Decree No. 1033. It III
being conceded in all quarters that
sovereignty resides in the people and it
The paramount consideration that impelled Us to arrive at the
having been demonstrated that their
foregoing opinion is the necessity of ensuring popular control
constituent power to amend the Constitution
over the constituent power. "If the people are to control the
has not been delegated by them to any
instrumentality of the Government during the constituent power - the power to make and change the
present stage of the transition period of our fundamental law of the State," observed Wheeler," "the process
of Constitutional change must not be based too heavily upon
political development, the conclusion is
existing agencies of government." Indeed, the basic premise of
ineluctable that their exertion of that
republicanism is that the ordinary citizen, the common man. can
residuary power cannot be vulnerable to any
be trusted to determine his political destiny. Therefore, it is time
constitutional challenge as beingultravires.
that the people should be accorded the fullest opportunity to terms the method by which provisions in their fundamental
decide the laws that shall provide for their governance. For in Charter may be amended or revised. Having done so, the people
the ultimate analysis, the success of the national endeavor shall are bound by these constitutional limitations. For while there is
depend on the vision, discipline and I by ininess of the moqqqtai no surrender or abdication of the people's ultimate authority to
will of every Filipino. amend, revise, or adopt a new Constitution, sound reason
demands that they keep themselves within the procedural
IN VIEW OF THE FOREGOING CONSIDERATIONS, We bounds of the existing fundamental law. The right of the people
vote to dismiss the petitions. 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
Aquino, J., concur.
be accomplished through the ordinary, regular and legitimate
processes provided for in the Constitution.'
The term "political question", as this Court has previously As will be seen, the authority to amend the Constitution was
defined, refers to those questions which, under the constitution, removed from the interim National Assembly and transferred to
are to be decided by the people in their sovereign capacity, or the seat of sovereignty itself. Since the Constitution emanates
in regard to which full discretionary authority has been from the people who are the repository of all political powers,
delegated to the Legislature or executive branch of the their authority to amend the Constitution through the means
Government. It is concerned with the issues dependent upon the they have adopted, aside from those mentioned in the
wisdom, not legality, of a particular measure.1 Constitution, cannot be gainsaid. Not much reflection is also
needed to show that the President did not exercise his martial
Here, the question raised is whether the President has authority law legislative powers when he proposed the amendments to the
to propose to the people amendments to the Constitution which Constitution. He was merely acting as an instrument to carry
the petitioners claim is vested solely upon the National out the will of the people. Neither could he convene the interim
National Assembly, as suggested by the petitioners, without 8 Concurring and dissenting opinion of
doing violence to the people's will expressed overwhelmingly Justice Fernando in the Plebiscite Cases
when they decided against convening the interim assembly for (Planas v. Comelec, 49 SCRA 105). See
at least seven years. Martial Law and the New Society in the
Philippines, Supreme Court, 1976, at 152.
3. The period granted to the people to consider the proposed
amendments is reasonably long and enough to afford intelligent 9 Orfield Amending the Federal Constitution,
discussion of the issues to be voted upon. PD 991 has required 111.
the barangays to hold assemblies or meetings to discuss and
debate on the referendum questions, which in fact they have 10 Separate Opinion of Justice Concepcion in
been doing. Considering that the proposed amendments came the Ratification Casts v. the Executive
from the representatives of the people themselves, the people Secretary 50 SCRA 30), Martial Law and the
must have already formed a decision by this time on what stand New Society in the Philippines, 1976,
to take on the proposed amendments come the day for the Supreme Court, 210-224, quoting Tanada v.
plebiscite. Besides, the Constitution itself requires the holding Cuenco, 103 Phil. 1051.
of a plebiscite for the ratification of an amendment not later than
three (3) months after the approval of such amendment or
11 See Martial Law and the New Society in
revision but without setting a definite period within which such
the Philippines, Supreme Court, 1976, at 121.
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 12 Idem, at 210.
to its ratification by the people.
13 The view of the Chief Justice was shared
Footnotes by Justices Makalintal (later Chief Justice),
Zaldivar, Castro (present Chief Justice),
Fernando, and Teehankee. Justice Barredo
1 Sec. 3, PD 991, September 2, 1976.
qualified his vote, stating that "inasmuch as it
is claimed that there has been approval by the
2 SEC. 4 Who shall participate.-Every people, the Court may inquire into the
Filipino citizen, literate or not, fifteen years question of whether or not there has actually
of age or over who has resided in the been such an approval, and, in the
barangay for at least six months shall affirmative, the Court should keep its hands-
participate in the consultation in his off out of respect to the people's will, but, in
barangay. Provided, however, That any the negative, the Court may determine from
person who may not be able to participate in both factual and legal angles whether or not
the consultations of his barangay may do so Article XV of the 1935 Constitution has been
in any barangay member shall participate in complied with." Justices Makasiar, Antonio
more than one barangay consultation. and Esguerra hold that the issue is political
and "beyond the ambit of judicial inquiry."
3 SEC. 15. The National Assembly upon
special call by the interim Prime Minister, 14 62 SCRA 275, Referendum Case, Martial
may, by a majority vote of all its Members, Law and the New Society in the Philippines,
propose amendments to this Constitution. Supreme Court, 1976, at 1071.
Such amendments shall take effect when
ratified in accordance with Article Sixteen 15 Idem, at 10791081.
thereof."
16 In the United States, all amendments to the
4 Pascual v. Secretary of Public Works, 110
Federal constitution, except the Twenty-first
Phil. 331 (1960).
Amendment, had been proposed by the U.S.
Congress, Modern Constitutional Law,
5 Section 18. Antieau Vol. 2,1969 ed., at 482.
23 See Separate Opinion of the Chief Justice 45 See Martial Law and the New Society,
(the Justice Castro in the Referendum Case 1976, Supreme Court, at 1082-83.
(Aquino v. Comelec), at p. 1084, Martial Law
and the New Society in the Philippines, 46 307 U.S. 433, see Cases in Constitutional
Supreme Court, 1976. Law, 3rd ed., Cushman and Cushman, 12-13.
33 Justice Makasiar referred to Article XVII, 51 L-36142, March 31, 1973, 50 SCRA 30. If
Sec. 3, par. 2 of the present Constitution. The I read correctly the concurring opinion of the
present Chief Justice would include then Chief Justice Makalintal and the now
paragraph 1 to the above. Vide in. 4. Chief Justice Castro, then an Associate
Justice, where the question raised concerns
34 L-34150, October 16,1951, 41 SCRA 702. the adoption and enforcement of a new
Constitution, then it may be looked upon as
political.
35 According to Article 11, Section 1 of the
present Constitution: The Philippines is a
republican state. Sovereignty resides in the 52 78 Phil. 1 (1947). To be more precise,
people and all government authority there were only five Justices, headed by
emanates from them." Justice Tuason, with the then Chief Justice
Moran and the then Justices Paras, later
himself a Chief Justice, Hilado, Pablo and
36 Cf. Crammer v. Thorson 68 NE 202 Hontiveros, who were of that persuasion. The
(1896): Edwards v. Lesueur 83 SW 1130 other two votes necessary for a majority for
dismissing the prohibition petition were 11 Marshall, C.J. in Marburg vs. Madison, 1
supplied by Justice, also later a Chief Justice, Cranch 137(1803).
Bengzon and Justice Padilla.
12 Cooley's Constitutional Limitations, 8th
53 307 U.S. 433. In the concurring opinion of Ed., Vol. 1, p. 81
Justice Black, with Justices Roberts,
Frankfurther and Douglas in agreement, he 13 Idem, pp. 87-88.
made the categorial statement that such
process "is 'political' in its entirety, from
14 Javellana vs' Exec. Secretary, 50 SCRA 30
submission until an amendment becomes part
(1973).
of the Constitution, and is not subject to
judicial guidance, control or interference at
any point." At 459. 15 Majority opinion at p.20.
4 Article XVII, section 15. 2 Do you want to call the interim National
Assembly?
5 P.D. No. 991 dated Sept. 2, 1976, as
amended by P.D. No. 1031 dated Sept. 22, 3 If not, do you want to call a body with
1976 and P.D. No. 1033 dated Sept. 22, 1976 legislative powers?
"Stating the questions to be submitted to te
people i the referendum-plebiscite on 4 Do you want such body to have full
October 16, 1976". legislative powers?
6 Art. XV, sec. 1, 1935 Constitution (see Art. 5 If not, do you want such body to have
XVI, secs. 1 and 2, 1973 Constitution). limited legislative powers as may be
determined by the President in a presidential
7 Resolution on motion for reconsideration in decree?
Tolentino vs. Comelec dated Nov. 4, 1971, at
page 3. 6 If you want to call a body with certain
legislative powers, do you want to grant such
8 Idem, at page 4. body authority to propose amendments to the
Constitution to make it conform with the
9 Idem, at page 4 aims to the New Society?
10 Idem, at page 4.
7 If you want to call the body referred to 28 Tolentino vs. Comelec, 41 SCRA 702,
questions 4, 5, and 6, do you want the 725; emphasis supplied.
members of such body elected by the people
through the barangays in accordance with an 29 36 SCRA 228 234 (1970).
election code to be promulgated in a decree
by the President?
30 Resolution denying motion for
reconsideration dated Nov. 4, 1971, at page
"The barangay and sanggunian executive 13.
committees informed the President that it was
'the thing of the barangays to undertake the
31 Idem, at page 16 fn. 6.
referendum on an informal manner and that
they opted to devise their own ballots, tally
sheets, and all other necessary from.' 32 Majority opinion, at page 19.
25 Art. IX, see. 1, 1973 Constitution. 37 With the exception of the proposed
amendments increasing the membership of
the House of Representatives from 120 to 180
26 Cooleys Constitutional Limitations, 8th
and authorizing members of Congress to
Ed. Vol. 2, p. 1349, citing Chief Justice Davis become Con-Con delegates, which were
in Gibson vs. Mason, 5 Nev. 293, 291 thus; widely publicized as a result of the court
"The maxim which lies at the foundation of
proceedings and decision in Gonzales vs.
our government is that all political power
Comelec, 21 SCRA 774.
originates with the people. But since the
organization of government it cannot be
claimed that either the legislative, executive, 38 "Perspectives and Dimensions of
or judicial powers, either wholly or in part, Constitutional Reforms" delivered as keynote
can be exercised by them. By the institution speech at the National Conference on
of government the people surrender the Constitutional Amendments, July 27,1970.
exercise of all these sovereign functions of
government to agents chosen by themselves, 39 Articles VIII, IX and X, 1973
who at least theoretically represent the Constitution.
supreme will of their constituents. Thus all
power possessed by the people themselves is 40 U.P. Professor Perfecto V. Fernandez:
given and centered in their chosen Civil Liberties under Martial Law.
representatives
41 Louis H. Pollale The Constitution and the
27 See fns. 8-10: note in parenthesis supplied. Supreme Court, Vol. 1, page 191.
42 Supra, fn. 16. 2 50 SCRA 30, 209 et seq.
396 _______________
SUPREME COURT REPORTS ANNOTATED 16 Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183,
March 25, 1999, 305 SCRA 303, citing Government v.
Jalandoni, No. 837-R, August 30, 1947, 44 O.G. 1840.
397
“It will not do to decide the same question one way between one
Lambino vs. Commission on Elections
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 between the individuals concerned and their circumstances, he
yesterday when I was a defendant, I shall look for the same or they will be guilty as charged.”18
judgment today if I am plaintiff. To decide differently would
raise a feeling of resentment and wrong in my breast; it would
Although the doctrine of stare decisis does not prevent
reexamining and, if need be, overruling prior decisions, “It is x
x x a fundamental jurisprudential policy that prior applicable SUPREME COURT REPORTS ANNOTATED
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 Lambino vs. Commission on Elections
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 III
Accordingly, a party urging overruling a precedent faces a
The proposed constitutional changes constitute Revisions and
rightly onerous task, the difficulty of which is roughly
not mere amendments
proportional to a number of factors, including the age of the
precedent, the nature and extent of public and private reliance Article XVII of the 1987 Constitution lays down the means for
on it, and its consistency or inconsistency with other related its amendment and revision. Thus:
rules of law. Here, petitioners failed to discharge their task.
398
The deliberations of the 1986 Constitutional Commission is
explicit that Section 2, Article XVII covers only amendments,
398 thus:
MR. DAVIDE: With pleasure, Madam President.
399
Considering that the initiative on the Constitution only permits
amendments, it is imperative to examine whether petitioners’
Lambino vs. Commission on Elections proposed changes partake of the nature of amendments, not
revisions.
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 20 July 9, 1986. Records of the Constitutional Commission, No.
Report No. 7. This proposal was suggested on the theory that 26.
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 400
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 400
proposed Article on Amendment or Revision.
Petitioners contend that the proposed changes are in the nature 401
of amendments, hence, within the coverage of a “people’s
initiative.”
Lambino vs. Commission on Elections
I disagree.
“ “Revision” and “amendment” have the common
characteristics of working changes in the charter, and are
The noted constitutionalist, Father Joaquin G. Bernas, S.J., who sometimes used in exactly the same sense but there is an
was also a member of the 1986 Constitutional Commission, essential difference between them.”
characterized an amendment and a revision to the Constitution
as follows:
“Revision” implies a re-examination of the whole law and a
redraft without obligation to maintain the form, scheme, or
“An amendment envisages an alteration of one or a few specific structure of the old. As applied to fundamental law, such as a
and separable provisions. The guiding original intention of an constitution or charter, it suggests a convention to examine the
amendment is to improve specific parts or to add new whole subject and to prepare and submit a new instrument
provisions deemed necessary to meet new conditions or to whether the desired changes from the old are few or many.
suppress specific portions that may have become obsolete or Amendment implies continuance of the general plan and
that are judged to be dangerous. In revision however, the purpose of the law, with corrections to better accomplish its
guiding original intention and plan contemplates a re- purpose. Basically, revision suggests fundamental change,
examination of the entire document, or of provisions of the while amendment is a correction of detail.
document which have overall implications for the document to
determine how and to what extent they should be altered.”21
Although there are some authorities which indicate that a
change in a city’s form of government may be accomplished by
Obviously, both “revision” and amendment” connote change; a process of “amendment,” the cases which so hold seem to
any distinction between the two must be based upon the degree involve statutes which only distinguish between amendment
of change contemplated. In Kelly v. Laing,22 the Supreme and totally new charters.23 However, as in Maine law, where
Court of Michigan made the following comparison of the two the statute authorizing the changes distinguishes between
terms: “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
_______________
Firstly, a shift from a presidential to a parliamentary form of
government affects the well-enshrined doctrine of separation of
In summary, it would seem that any major change in powers of government, embodied in our Constitution, by
governmental form and scheme would probably be interpreted providing for an Executive, Legislative and Judiciary Branches.
as a “revision” and should be achieved through the more In a Parliamentary form of government, the Executive Branch
thorough process of deliberation. 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
Although, at first glance, petitioners’ proposed changes appear interwoven in the fabric of our Constitution, that any change
to cover isolated and specific provisions only, however, upon affecting such doctrine must necessarily be a revision.
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 In McFadden vs. Jordan,26 the California Supreme Court ruled
changes will have a “domino effect” or, more appropriately, as follows:
“ripple effect” on other provisions of the Constitution.
402 _______________
SUPREME COURT REPORTS ANNOTATED 25 Adams v. Gunter Fla, 238 So. 2d 824.
At this juncture, it must be emphasized that the power reserved 27 Adams v. Gunter Fla. 238 So.2d 824.
to the people to effect changes in the Constitution includes the
power to amend any section 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 403
article of the Constitution or require further amendments to the
Constitution to accomplish its purpose.”25 This is clearly not
the case here. VOL. 505, OCTOBER 25, 2006
403
Section 3.Upon the expiration of the term of the incumbent “There is in the measure itself, no attempt to enumerate the
President and Vice-President, with the exceptions of Section various and many articles and sections of our present
1,2,3 and 4 of Article VII of the 1987 Constitution which are Constitution which would be affected, replaced or repealed. It
hereby amended x x x x x x and all other Sections of Article VII purports only to add one new article but its framers found it
shall be retained and numbered sequentially as Section 2, ad necessary to include the omnibus provision (subdivision (7) of
seriatim up to 14, unless they shall be inconsistent with Section section XII) that “If any section, subsection, sentence, clause or
1 hereof, in which case they shall be deemed amended so as to phrase of the constitution is in conflict with any of the
conform to a unicameral Parliamentary system of government provisions of this article, such section, subsection, sentence,
xxxxxx. 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
xxx xxx xxx 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
Section 4.(1) x x x
Undoubtedly, the changes proposed by the petitioners are not than a rebuilding of the Philippine constitutional structure. Who
mere amendments which will only affect the Articles or were involved in formulating the structure? What debates
Sections sought to be changed. Rather, they are in the nature of ensued? What records are there for future use in interpreting the
revisions which will affect considerable portions of the provisions which may be found to be unclear?
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
In a deliberative body like Congress or a Constitutional
provisions of our Constitution. Accordingly, it has been held
Convention, decisions are reached after much purifying debate.
that: “If the changes attempted are so sweeping that it is
And while the deliberations proceed, the public has the
necessary to include the provisions interlocking them, then it is
opportunity to get involved. It is only after the work of an
plain that the plan would constitute a recasting of the whole
authorized body has been completed that it is presented to the
Constitution and this, we think, it was intended to be
electorate for final judgment. Careful debate is important
accomplished only by a convention under Section 2 which has
because the electorate tends to accept what is presented to it
not yet been disturbed.”29
even sight unseen.”30
_______________
IV
405
_______________
406
“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 SUPREME COURT REPORTS ANNOTATED
is to formulate the revision or how is it to be formulated?
Revision, as concretely being proposed now, is nothing less
Lambino vs. Commission on Elections _______________
The Congress shall provide for the implementation of the 31 See Sections 8-12 for national initiative and referendum, and
exercise of this right. sections 13-19 for local initiative and referendum.
The passage of time has done nothing to change the Lambino vs. Commission on Elections
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 (b) defines “initiative on the Constitution” and includes it in the
360degree turn, enumerating three (3) justifications why R.A. enumeration of the three systems of initiative in Section 3;33
No. 6735 must be considered a sufficient law, thus:
(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
1) The text of R.A. No. 6735 is replete with references to the
right of people to initiate changes to the Constitution; (d) reiterates the constitutional requirements as to the number
of voters who should sign the petition;35 and
2) The legislative history of R.A. No. 6735 reveals the clear
intent of the lawmakers to use it as instrument to implement the (e) provides the date for the effectivity of the approved
people’s initiative; and proposition.36
3) The sponsorship speeches by the authors of R.A. No. 6735 In other words, R.A. No. 6735 does not specify the procedure
demonstrate the legislative intent to use it as instrument to how initiative on the Constitution may be accomplished. This is
implement people’s initiative. not the enabling law contemplated by the Constitution. As
pointed out by oppositor-intervenor Alternative Law Groups
I regret to say that the foregoing justifications are wanting. 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:
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
32 Section 2. Statement of Policy.—The power of the people
merely:
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.
• Names, signatures and addresses of petitioners who shall be
registered voters;
33 Section 3. Definition of terms.— • A statement of the provision of the Constitution or any part
thereof sought to be amended and the proposed amendment;
VI
xxx
The Petition for Initiative Filed with the COMELEC Does not
Comply with Section 2, Article XVII of the Constitution and
R.A. No. 6735
36 Section 9 (b)—The proposition in an initiative on the
Constitution approved by a majority of the votes cast in the I shall discuss the above issues together since they are
plebiscite shall become effective as to the day of the plebiscite. 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
408
of Section 2, Article XVII of the Constitution.
408
409
410
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 SUPREME COURT REPORTS ANNOTATED
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
Lambino vs. Commission on Elections
nor oftener than once every five years thereafter.
411
37 7 How (48 US) 1 (1849).
38 328 US 549 (1946). 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.
39 77 Phil. 192 (1946).
413
_______________
Constitution. The Court concluded, among others, that the viva
voce voting in the Citizens’ Assemblies “was and is null and
41 G.R. No. 35546, September 17, 1974, 50 SCRA 559. 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,
42 369 US 186 (1962). 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. Consequently, we must
44 G.R. No. 88211, September 15, 1989, 177 SCRA 668. 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
414 people running the government, NOT the SYSTEM.
414 _______________
SUPREME COURT REPORTS ANNOTATED 45 Nos. L-36142, L-36164, L-36165, L-36236, and L-36283,
March 31, 1973, 50 SCRA 30.
CONCLUSION
VOL. 505, OCTOBER 25, 2006
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-
415
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 Lambino vs. Commission on Elections
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
According to petitioners, the proposed amendment would effect
voters. Indeed, there will be no means of knowing, to the point
a more efficient, more economical and more responsive
of judicial certainty, whether they really understood what
government.
petitioners and their group asked them to sign.
Santiago Does Not Apply to This Case But Only to the 1997
Delfin Petition
WHEREFORE, I vote to DISMISS the petition in G.R. No.
174153 and to GRANT the petition in G.R. No. 174299. 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
DISSENTING OPINION cover the system of initiative regarding amendments to the
Constitution and (2) the COMELEC was permanently enjoined
CORONA, J.: 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.
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. However, Santiago should not apply to this case but only to the
Fealty to the primary constitutional principle that the petition of Delfin in 1997. It would be unreasonable to make it
Philippines is not merely a republican State 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
1 Abrams v. United States, 250 U.S. 616.
doctrines of stare decisis and res judicata. The argument is
flawed.
416
The ponencia of Mr. Justice Puno has amply discussed the for initiative was barred by Santiago and, on that ground,
arguments relating to stare decisis. Hence, I will address the dismissed the petition.
argument from the viewpoint of res judicata.
_______________
People’s Initiative Should Not Be Subjected to Conditions
_______________
VOL. 505, OCTOBER 25, 2006
Lambino vs. Commission on Elections 4 Feria and Noche, CIVIL PROCEDURE ANNOTATED, vol.
I, 2001 edition, p. 419.
There is no identity of parties in Santiago and the instant case. Lambino vs. Commission on Elections
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 the Constitution. Neither should the exercise of this power be
cases. Santiago involved amendments to Sections 4 and 7 of made subject to any conditions, as some would have us accept.
Article VI, Section 4 of Article VII and Section 8 of Article X
of the Constitution while the present petition seeks to amend
Sections 1 to 7 of Article VI and Sections 1 to 4 of the 1987
Constitution. Clearly, therefore, the COMELEC committed Oppositors to the people’s initiative point out that this Court
grave abuse of discretion when it ruled that the present petition 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 419
changes to the Constitution. This reasoning is seriously
objectionable.
420 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
420 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
SUPREME COURT REPORTS ANNOTATED registered voters therein.
Lambino vs. Commission on Elections Petitioners further alleged therein that the filing of the petition
for initiative is based on their constitutional right to propose
amend-
problems of society and representative democracy with the
constitutional tools they have reserved for their use alone.
421
The Congress shall provide for the implementation of the SUPREME COURT REPORTS ANNOTATED
exercise of this right.”
c.3. the reason or reasons therefor; 1. Finding the Petition to be sufficient pursuant to Section 4,
Article XVII of the 1987 Constitution;
c.4. that it is not one of the exceptions provided herein;
2. Directing the publication of the Petition in Filipino and
English at least twice in newspapers of general and local
circulation; and “Sec. 2. Amendments to this Constitution may, likewise, be
directly proposed by the people through initiative, upon a
3. Calling a plebiscite to be held not earlier than sixty nor later petition of at least twelve per centum of the total number of
than ninety days after the Certification by this Honorable registered voters, of which every legislative district must be
Commission of the sufficiency of this Petition, to allow the represented by at least three per centum of the registered voters
Filipino people to express their sovereign will on the therein. x x x.
proposition.
Petitioners pray for such other reliefs deemed just and equitable
in the premises. The Congress shall provide for the implementation of the
exercise of this right.”
VOL. 505, OCTOBER 25, 2006 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
423
enacted to provide for the implementation of the system.
424
III.
424
425
I.
4.
SUPREME COURT REPORTS ANNOTATED
A writ for certiorari may issue only when the following There is thus grave abuse of discretion on the part of the
requirements are set out in the petition and established: 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
(1) the writ is directed against a tribunal, a board or any officer The only question involved is jurisdiction, either the lack or
exercising judicial or quasi-judicial functions; excess thereof, and abuse of discretion warrants the issuance of
the extraordinary remedy of certiorari only when the same is
(2) such tribunal, board or officer has acted without or in excess grave, as when the power is exercised in an arbitrary or despotic
of jurisdiction, or with grave abuse of discretion amounting to manner by reason of passion, prejudice or personal hostility. A
lack or excess of jurisdiction; and writ of certiorari is a remedy designed for the correction of
errors of jurisdiction and not errors of judgment.7 An error of
(3) there is no appeal or any plain, speedy and adequate remedy judgment is one in which the court may commit in the exercise
in the ordinary course of law. x x x4 of its jurisdiction, which error is reversible only by an appeal.8
_______________
427
_______________
428 _______________
430
The Court reiterated its ruling in Santiago in another petition
which was filed with the Court by PIRMA and the spouses
Alberto
430
_______________ 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,
15 Entitled In Re: Rules and Regulations Governing the
cannot be held to have committed a grave abuse of its discretion
Conduct of Initiative in the Constitution, and Initiative and
in dismissing the petition before it:
Referendum on National and Local Laws.
433
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
Lambino vs. Commission on Elections
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 idly enacted. Clearly, the COMELEC, in denying due course to
portion referred only to the Delfin petition. 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
The OSG’s attempt to isolate the dispositive portion from the
of courts. For the Court to find the COMELEC to have abused
body of the Court’s decision in Santiago is futile. It bears
its discretion when it dismissed the amended petition based on
stressing that the dispositive portion must not be read separately
the ruling of this Court in Santiago would be sheer judicial
but in connection with the other portions of the decision of
apostasy.
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 As eloquently put by Justice J.B.L. Reyes, “there is only one
not merely in the fallo thereof.19 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
The pronouncement in the body of the decision in Santiago
“assume the same authority as the statute itself and, until
permanently enjoining the COMELEC “from entertaining or
authoritatively abandoned, necessarily become, to the extent
taking cognizance of any petition for initiative on amendments
that they are applicable, the criteria which must control the
to the Constitution until a sufficient law shall have been validly
actuations not only of those called upon to abide thereby but
enacted to provide for the implementation of the system” is thus
also of those duty bound to enforce obedience thereto.”21
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 Petitioners Cannot Ascribe Grave Abuse of Discretion on the
have been val- COMELEC Based on the Minority Opinion in Santiago
433
_______________
20 Albert v. Court of First Instance of Manila, No. L-26364, in the Decision of March 19, 1997 remains the definitive ruling
May 29, 1968, 23 SCRA 948. on the matter.
434
In the Resolution dated June 10, 1997, the motions for It bears stressing that in PIRMA, petitioners prayed for the
reconsideration of the Santiago decision were denied with Court to resolve the issue posed by them and to re-examine its
finality as only six Justices, or less than the majority, voted to ruling as regards RA 6735. By a vote of seven members of the
grant the same. The Resolution expressly stated that the motion Court, including Justice Justo P. Torres, Jr. and Justice Jose C.
for reconsideration failed “to persuade the requisite majority of Vitug, the Court voted that there was no need to resolve the
the Court to modify or reverse the Decision of 19 March issue. Five members of the Court opined that there was a need
1977.”24 In fine, the pronouncement in Santiago as embodied 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.
SUPREME COURT REPORTS ANNOTATED
_______________
Contrary to the stance taken by petitioners, the validity or
constitutionality of a law cannot be made to depend on the
25 House Bill No. 457 filed by then Rep. Nachura during the individual opinions of the members who compose it—the
Twelfth Congress. 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
436 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.
436 Parties should not be encouraged to seek re-examination of
determined
“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
26 See Pagdayawon v. Secretary of Justice, G.R. No. 154569, at least three hundred thousand inhabitants per district, and on
September 23, 2002, 389 SCRA 480. 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.
437
_______________
VOL. 505, OCTOBER 25, 2006
Proposals to Revise the Constitution, As in the Case of the SUPREME COURT REPORTS ANNOTATED
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 Lambino vs. Commission on Elections
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended “Section 1. There shall be a President who shall be the Head of
to read as follows: 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 “House of Congress,” “Senator[s] or “Member[s] of the House
Parliament for the program of government. 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
C. For the purpose of insuring an orderly transition from the
to the “President” and or “Acting President” shall be changed
bicameral-Presidential to a unicameral-Parliamentary form of
to read “Prime Minister.”
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 Section 3. “Upon the expiration of the term of the incumbent
serve until the expiration of their term at noon on the thirtieth President and Vice President, with the exception of Sections 1,
day of June 2010 and shall continue to exercise their powers 2, 3 and 4 of Article VII of the 1987 Constitution which are
under the 1987 Constitution unless impeached by a vote of two hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are
thirds of all the members of the interim parliament. 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
(2) In case of death, permanent disability, resignation or case they shall be deemed amended so as to conform to a
removal from office of the incumbent President, the incumbent unicameral Parliamentary System of government; provided,
Vice President shall succeed as President. In case of death, however, that any and all references therein to “Congress,”
permanent disability, resignation or removal from office of both “Senate,” “House of Representatives” and “Houses of
the incumbent President and Vice President, the interim Prime Congress” shall be changed to read “Parliament”; that any and
Minister shall assume all the powers and responsibilities of all references therein to “Member[s] of Congress,” “Senator[s]”
Prime Minister under Article VII as amended. 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.”
439
(3) Senators whose term of office ends in 2010 shall be
Members of Parliament until noon of the thirtieth day of June
Lambino vs. Commission on Elections 2010.
(4) Within forty-five days from ratification of these voters therein. Certifications allegedly executed by the
amendments, the interim Parliament shall convene to propose respective COMELEC Election Registrars of each municipality
amendments to, or revisions of, this Constitution consistent and city verifying these signatures were attached to the petition
with the principles of local autonomy, decentralization and a for initiative. The verification was allegedly done on the basis
strong bureaucracy. of the list of registered voters contained in the official
COMELEC list used in the immediately preceding election.
440
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI
AND VII OF THE 1987 CONSTITUTION, CHANGING THE
FORM OF GOVERNMENT FROM THE PRESENT
440
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE
SUPREME COURT REPORTS ANNOTATED ORDERLY SHIFT FROM ONE SYSTEM TO THE
OTHER?29
(2) The interim Parliament shall provide for the election of the
441
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government
officials. [Thereafter, the VicePresident, as Member of
Parliament, shall immediately convene the Parliament and shall VOL. 505, OCTOBER 25, 2006
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
441
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 Lambino vs. Commission on Elections
Petitioners claim that the required number of signatures of According to petitioners, the proposed amendment of Articles
registered voters have been complied with, i.e., the signatories VI and VII would effect a more efficient, more economical and
to the petition constitute twelve percent (12%) of all the more responsive government. The parliamentary system would
registered voters in the country, wherein each legislative district allegedly ensure harmony between the legislative and executive
is represented by at least three percent (3%) of all the registered
branches of government, promote greater consensus, and
provide faster and more decisive governmental action.
442
Article XVII
SUPREME COURT REPORTS ANNOTATED
(1) The Congress, upon a vote of three-fourths of all its and procedures for effecting changes of the Constitution fully
Members; or cognizant of the distinction between the two concepts.
Commissioner Jose E. Suarez, the Chairman of the Committee
(2) A constitutional convention. on Amendments and Transitory Provisions, explained:
b. A constitutional convention.
The 1973 Constitution is not a mere amendment to the 1935
2. Under Section 2, Article XVII, amendments to the Constitution. It is a completely new fundamental Charter
Constitution may be likewise directly proposed by the people embodying new political, social and economic concepts.
through initiative.
Lambino vs. Commission on Elections 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
It is significant to note that, originally, the provision on the
the traditional modes of amending the Constitution
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 31 Id., at p. 371.
may be proposed:
444
(a) by the National Assembly upon a vote of three-fourths of all
its members; or
444 which contemplates a total overhaul of the Constitution. That
was the sense conveyed by the Committee.
_______________
33 Id., at p. 392.
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
445
90-day periods.
MR. SUAREZ. No, not unless we settle and determine the take- Lambino vs. Commission on Elections
off period.
Sections 1 and 2, Article XVII as eventually worded read: The Congress shall provide for the implementation of the
exercise of this right.
Article XVII
The final text of Article XVII on Amendments or Revisions
clearly makes a substantial differentiation not only between the
SECTION 1. Any amendment to, or revision of, this two terms but also between two procedures and their respective
Constitution may be proposed by: 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.
(3) The Congress, upon a vote of three-fourths of all its
Members; or
447 On the other hand, the term “revision” was explained by the said
US appellate court:
“Strictly speaking, the act of revising a constitution involves 38 37 S.E.2d 322 (1946).
alterations of different portions of the entire document. It may
39 Id., at p. 330. 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
448
of “amendments” means that a revision can be achieved by the
introduction of a multiplicity of amendments!”41
448
Given that revision necessarily entails a more complex,
substantial and far-reaching effects on the Constitution, the
SUPREME COURT REPORTS ANNOTATED 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
_______________
Fairly recently, Fr. Joaquin Bernas, SJ, a member of the VOL. 505, OCTOBER 25, 2006
Constitutional Commission, expounded on the distinction
between the two terms thus:
449
The Constitution is the fundamental law of the state, containing Lambino vs. Commission on Elections
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 disregards that express will is a direct violation of the
in which it is to be exercised.43 The Philippines has followed fundamental law.46
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 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
The Constitution received its force from the express will of the determination a judicial question, and the courts are the only
people. An overwhelming 16,622,111, out of 21,785,216 votes tribunals vested with power under the Constitution to determine
cast during the plebiscite, or 76.30% ratified the present such question.47
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 Earlier, it was mentioned that Article XVII, by the use of the
the particular manner in which the same may be altered or terms “amendment” and “revision,” clearly makes a
changed, then any course which 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
42 Introduction to the Journal of the Constitutional as “California Bill of Rights,” comprised a single new article
Commission. 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
43 BLACK, CONSTITUTIONAL LAW 1-2, citing 1 BOUV. judicial functions, legalize gaming, completely revise the
INST. 9. 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.
44 SCHWARTZ, CONSTITUTIONAL LAW 1.
450
_______________ 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
46 See McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909).
requisites for safety.50
47 Id.
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
48 196 P.2d 787 (1948). 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
451
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
VOL. 505, OCTOBER 25, 2006
_______________
451
49 Id., at p. 798.
Lambino vs. Commission on Elections
Provisions regulating the time and mode of effecting organic 1. Section 19 of Article III (Bill of Rights) on the power of
changes are in the nature of safety-valves—they must not be so Congress to impose the death penalty for compelling reasons
adjusted as to discharge their peculiar function with too great involving heinous crimes;
facility, lest they become the ordinary escape-pipes of party
passion; nor, on the other hand, must they discharge it with such
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; —(C) Section 2 (7) on the power of the COMELEC to
recommend to Congress measures to minimize election
3. All 32 Sections of Article VI on the Legislative Department; spending x x x;
—Section 8 on the composition of Judicial Bar Council (JBC) Lambino vs. Commission on Elections
which includes representatives of Congress as ex officio
members and on the power of the President to appoint the
regular members of the JBC; —(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
—Section 9 on the power of the President to appoint the disciplinary action x x x;
members of the Supreme Court and judges of lower courts;
6. The following Sections of Article IX (Constitutional —(C) Section 5 on the power of the President, with the
Commissions); favorable recommendation of the COMELEC, to grant pardon,
amnesty, parole, or suspension of sentence for violation of
—(B) Section 3 on duty of Civil Service Commission to make election laws, rules and regulations;
annual report to the President and Congress;
—Section 18 on the power of Congress to enact organic act for —Section 2 on the power of Congress to allow, by law, small-
each autonomous region as well as the power of the President scale utilization of natural resources and power of the President
to appoint the representatives to the regional consultative to enter into agreements with foreign-owned corporations and
commission; duty to notify Congress of every contract;
454
—Section 4 on the power of Congress to determine specific
limits of forest lands;
SUPREME COURT REPORTS ANNOTATED
455
—Section 11 on the power of Congress to regulate or prohibit “Strictly speaking, the act of revising a constitution involves
monopolies in mass media; 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
—Section 12 on the power of Congress to create consultative
body to advise the President on indigenous cultural
communities.
_______________
457
The foregoing enumeration negates the claim that “the big bulk Lambino vs. Commission on Elections
of the 1987 Constitution will not be affected.”51 Petitioners’
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 produce, the factor that characterizes it as an act of revision is
numerous articles and sections thereof. More than the the original intention and plan authorized to be carried out. That
quantitative effects, however, the revisory character of intention and plan must contemplate a consideration of all the
petitioners’ proposition is apparent from the qualitative effects provisions of the constitution to determine which one should be
it will have on the fundamental law. altered or suppressed or whether the whole document should be
replaced with an entirely new one.
_______________
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
53 Supra note 38. 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.
458
_______________
458
459
56 Supra note 41.
The petition for initiative on amendments to the Constitution 6. An abstract or summary proposition in not more than one
filed by petitioners Lambino, et al., being in truth and in fact a hundred (100) words which shall be legibly written or printed
proposal for the revision thereof, is barred from the system of at the top of every page of the petition.
initiative upon any legally permissible construction of Section
2, Article XVII of the Constitution. Section 7 thereof requires that the signatures be verified in this
wise:
66 Annex “1377.”
69 Annex “1380.”
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
70 Annex “1381.” 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
71 Annex “1382.” 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
72 Annex “1383.” district must be represented by at least three percent (3%) of the
registered voters therein.
73 Annex “1385.”
_______________
74 Annex “1387.”
78 Annex “1392.”
75 Annex “1388.”
79 Annex “1393.”
76 Annex “1389.”
80 Annex “1395.”
77 Annex “1391.”
81 Annex “1396.”
462
82 Annex “1397.”
462
83 Annex “1398.”
85 Annex “1400.”
463 _______________
VOL. 505, OCTOBER 25, 2006 97 Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004,
421 SCRA 423.
463
98 See, for example, Mendoza v. Court of Appeals, No. L- Other oppositors-intervenors have alleged that the signatories
62089, March 9, 1988, 158 SCRA 508. did not fully understand what they have signed as they were
misled into signing the signature sheets.
_______________
464
466
_______________
102 Tañada v. Cuenco, 103 Phil. 1051 (1957). 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
103 Id.
controversy, hence, a nonpolitical question. There is no doubt
that the Constitution, under Article XVII, has explicitly
provided for the manner or method to effect amendments
104 G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311- thereto, or revision thereof. The question, therefore, of whether
312. there has been compliance with the terms of the Constitution is
for the Court to pass upon.105
467
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
VOL. 505, OCTOBER 25, 2006
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
467 constitutional amendments.” The cases cited were Day-
power is new and was not granted to our courts in the 1935 and 105 Dissenting Opinion of Justice Fernando in Javellana v.
1972 Constitutions. It was also not xeroxed from the US Executive Secretary, supra note 36.
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
106 119 N.W. 408 (1909).
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 468
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
468
habeas corpus, it is now beyond dubiety that the government
can no longer invoke the political question defense.
107 22 Minn. 400 (1876). 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
108 96 S.W. 396 (1906).
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
109 63 N.J. Law 289. 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
110 77 Miss. 543 (1900).
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
111 Section 1, Article II, 1987 Constitution. would be revolutionary, and the Constitution of the state would
become a mere matter of form.116
_______________
470
472
SEPARATE OPINION
Lambino vs. Commission on Elections
AZCUNA, J.:
AMENDMENTS OR REVISIONS
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
Section 1. Any amendment to, or revision of, this Constitution
than sixty days nor later than ninety days after the approval of
may be proposed by:
such amendment or revision.
473
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.
1 G.R. No. 127325, March 19, 1997 and June 10, 1997; 270
SCRA 106.
2 100 Phil. 501 (1956). 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
474
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
474 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
SUPREME COURT REPORTS ANNOTATED
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.
Lambino vs. Commission on Elections
475
directly exercise their sovereign powers, new features set forth
in this People Power Charter, namely, the powers of recall,
initiative and referendum.
VOL. 505, OCTOBER 25, 2006
This does not mean, however, that all is lost for petitioners.
Such proposal, moreover, complies with the intention and
rationale behind the present initiative, which is to provide for
For the proposed changes can be separated and are, in my view, simplicity and economy in government and reduce the
separable in nature—a unicameral legislature is one; a stalemates that often prevent needed legislation.
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
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
476 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
476
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.
SUPREME COURT REPORTS ANNOTATED
477
Lambino vs. Commission on Elections
APPENDIX “A”
Sec. 8. Unless otherwise provided by law, the regular election
of the Members of the House of Representatives shall be held
on the second Monday of May.
THE 1987
xxx 478
[Sec. 4. Deleted] Sec. 11. A Member of the House of Representatives shall, in all
offenses punishable by not more than six years imprisonment,
be privileged from arrest while the Congress is in session. No
Member shall be questioned nor be held liable in any other place
Section 5. (1) The House of Representatives shall be composed
for any speech or debate in the Congress or in any committee
of not more than two hundred and fifty members, unless
thereof.
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 Sec. 12. All Members of the House of Representatives shall,
progressive ratio, and those who, as provided by law, shall be upon assumption of office, make a full disclosure of their
elected through a party-list system of registered national, financial and business interests. They shall notify the House
concerned of a potential conflict of interest that may arise from (4) THE House shall keep a Journal of its proceedings, and from
the filing of a proposed legislation of which they are authors. time to time publish the same, excepting such parts as may, in
its judgment, affect
Sec. 16. (1). The House of Representatives shall elect its xxx
Speaker by a majority vote of all its Members. THE House shall
choose such other officers as it may deem necessary.
xxx
xxx
xxx
Sec. 8. In case of death, permanent disability, removal from
office, or resignation of the President, the Vice-President shall
481 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 Speaker of the
House of Representatives, shall then act as President until the
VOL. 505, OCTOBER 25, 2006 President or Vice-President shall have been elected and
qualified.
481
xxx
xxx
xxx
482
xxx
SUPREME COURT REPORTS ANNOTATED Sec. 21. No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the
Members of the HOUSE OF REPRESENTATIVES.
xxx
483
xxx
xxx
484
ARTICLE XVIII
484
TRANSITORY PROVISIONS
xxx
_______________
1 G.R. No. 127325, 19 March 1997, 270 SCRA 106.
_______________
487
_______________
Lambino vs. Commission on Elections
III.
11 Ibid.
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
12 129 Phil. 507, 516; 21 SCRA 1252, 1258 (1967).
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
13 G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987, are to be affected by the amendments proposed in the initiative
153 SCRA 67, 75. petition.
14 G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326. 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
15 Ibid.
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
16 G.R. No. 155855, 26 January 2004, 421 SCRA 92. 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
17 Id., at p. 104. Relatedly, the Court held that “[c]ontests which
do not involve the election, returns and qualifications of elected
officials are not
_______________
488
subjected to the exercise of the judicial or quasi-judicial powers government, nevertheless it ineluctably encompasses only a
of courts or administrative agencies”. Ibid. single general subject still.
18 See e.g., Memorandum of Oppositors-Intervenors Senators The 1987 Constitution (or any constitution for that matter) is
Pimentel, Jr., et al., pp. 19-22; Memorandum for Intervenor susceptible to division into several general spheres. To cite the
Senate of the Philippines, pp. 34-35. 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
19 See 1987 CONST., Art. VI, Sec. 26(1). See also Section
and XVI enunciate policy principles of the State. What would
19[1]. 1987 CONST, Art. VIII.
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
20 See e.g., Sumulong v. Commission on Elections, 73 Phil. initiative petition sought not only to change the form of
288, 291 (1941); Cordero v. Hon. Jose Cabatuando, et al., 116 government from presidential to parliamentary but also to
Phil. 736, 741; 6 SCRA 418, 422 (1962). 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
489
present initiative petitions.
489
21 See Tio v. Videogram Regulatory Board, G.R. No. L-75697,
18 June 1987, 151 SCRA 208, 214-215; citing Public Service
Co., Recktenwald, 290 Ill. 314, 8 A.L.R. 466, 470. See also
Lambino vs. Commission on Elections Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161,
10 December 2003, 417 SCRA 503, 519.
490
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
SUPREME COURT REPORTS ANNOTATED
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. Lambino vs. Commission on Elections
Both the Sigaw ng Bayan and the Lambino initiative petitions Neither can it be argued that the initiative petitions embrace
expressly propose the changing of the form of government from more than one subject since the proposed amendments seek to
bicameral-presidential to unicameral-parliamentary. Such a affect two separate branches of government. The very purpose
proposal may strike as comprehensive, necessitating as it will of the initiative petitions is to fuse the powers of the executive
the reorganization of the executive and legislative branches of and legislative branches of government; hence, the amendments
intended to effect such general intent necessarily affects the two Lambino vs. Commission on Elections
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
insist upon its liberal interpretation. After all, the Court has
petition from that which would propose amendments to Article
consistently adhered to a liberal interpretation of the one-
VI (Legislative Branch), then the result would be two initiative
subject, one-title rule.22 There is no cause to adopt a stricter
petitions—both subject to separate authentications,
interpretative rule with regard to the one-subject rule under
consideration and even plebiscites, all to effect one general
Section 10 of Rep. Act No. 6735.
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 IV.
legislative branch. An absurd result, indeed.
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
I am not even entirely comfortable with the theoretical of a deliberative body such as Congress or a constitutional
underpinnings of Section 10. The Constitution indubitably convention. It was submitted that this consideration influenced
grants the people the right to seek amendment of the charter the Constitutional Commission as it drafted Section 2, Article
through initiative, and mandates Congress to “provide for the XVII, which expressly provided that only amendments, and not
implementation of the exercise of this right.” In doing so, revisions, may be the subject of initiative petitions.
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 This argument clearly proceeds from a premise that accords
prohibition should not be sustained. Congress is tasked with the supreme value to the record of deliberations of a constitutional
implementation, and not the restriction of the right to initiative. 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
The one-subject requirement under Section 10 is not provided process authorized by the Constitution should be scarlet-
for as a bar to amendment under the Constitution. Arguments marked as well.
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 Even if this position can be given any weight in the
whether or not to vote for the amendments. These factors of consideration of these petitions, I would like to point out that
desirability nonetheless fail to detract from the fact that the one- resort to the records of deliberations is only one of many aids to
subject requirement imposes an additional restriction on the constitutional construction. For one, it should be abhorred if the
right to initiative not contemplated by the Constitution. Short of provision under study is itself clear, plain, and free from
invalidating the requirement, a better course of action would be ambiguity. As the Court held in Civil Liberties Union v.
to Executive Secretary:23
_______________
491
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; 282 SCRA 337, 349
(1997).
24 Id., at p. 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
23 Civil Liberties Union v. Executive Secretary, G.R. Nos. passages, sometimes out of their proper context, in order to
83896 & 83815; 22 February 1991, 194 SCRA 317. 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
492
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
492 legislature.” Southern Cross Cement Corporation v. Phil.
Cement Manufacturers, G.R. No. 158540, 8 July 2004, 434
SCRA 65, 95.
26 Id., at p. 215.
I fully agree with Justice Puno that all issues relating to the
sufficiency of the initiative petitions should be remanded to the sufficient, it would be akin to the Court pronouncing an accused
COMELEC. Rep. Act No. 6735 clearly reposes on the as guilty even before the lower court trial had began.
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 Matugas v. COMELEC29 inveighs against the propriety of the
registered voters in every legislative district have indeed signed Court uncharacteristically assuming the role of trier of facts,
the initiative petitions.28 It should be remembered that the and resolving factual questions not previously adjudicated by
COMELEC had dismissed the initiative petitions outright, and the lower courts or tribunals:
had yet to undertake the determination of sufficiency as
required by law.
28 See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987
CONST., Sec. 2, Art. XVI. VI.
495
31 See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987
CONST., Sec. 2, Art. XVI.
Lambino vs. Commission on Elections
496
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
496
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 SUPREME COURT REPORTS ANNOTATED
And even should the COMELEC find the initiative petitions Lambino vs. Commission on Elections
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
fully and in person all matters of policy, and we hold, not that
proposed, or the imputed motives behind the amendments. A
words and deeds go ill together, but that acts are foredoomed to
referendum, should the COMELEC find the petitions as
failure when undertaken undiscussed.”32
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 Unfortunately, given the highly politicized charge of the times,
the course our nation should take, with the ensuing net benefit 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 “The voice of the people has been said to be the voice of God;
attendant to the initiative process. Yet as a result of the harum- and however generally this maxim has been quoted and
scarum, the temptation lies heavy for a member of this Court believed, it is not true in fact. The people are turbulent and
perturbed with the prospect of constitutional change to relieve changing; they seldom judge or determine right. Give therefore
those anxieties by simply voting to enjoin any legal procedure to the first class a distinct permanent share in the government…
that initiates the amendment or revision of the fundamental law, Can a democratic assembly who annually revolve in the mass
even at the expense of the people’s will or what the Constitution of the people be supposed steadily to pursue the public good?
allows. A vote so oriented takes the conservative path of least Nothing but a permanent body can check the imprudence of
resistance, even as it may gain the admiration of those who do democracy…”33
not want to see the Constitution amended.
This utterly paternalistic and bigoted view has not survived into
Still, the biases we should enforce as magistrates are those of the present age of modern democracy where a person’s poverty,
the Constitution and the elements of democracy on which our color, or gender no longer impedes the exercise of full
rule of law is founded. Direct democracy, as embodied in the democratic rights. Yet a democracy that merely guarantees its
initiative process, is but a culmination of the evolution over the citizens the right to live their lives freely is incomplete if there
centuries of democratic rights of choice and self-governance. is no corresponding allowance for a means by which the people
The reemergence of the Athenian democratic ideal after have a direct choice in determining their country’s direction.
centuries of tyrannical rules arrived very slowly, the benefits Initiative as a mode of amending a constitution may seem
parceled out at first only to favored classes. The Magna Carta incompatible with representative democracy, yet it embodies an
granted limited rights to self-determination and selfgovernance even purer form of democracy. Initiative, which our 1987
only to a few English nobles; the American Constitution was Constitution saw fit to grant to the people, is a progressive
originally intended to give a meaningful voice only to free men, measure that is but a continuation of the line of evolution of the
mostly Caucasian, who met the property-holding requirements democratic ideal.
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 By allowing the sovereign people to directly propose and enact
revered figure as Alexander Hamilton, to whom the progressive constitutional amendments, the initiative process should be
historian Howard Zinn attributes these disconcerting words: 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.
32 From the “Funeral Oration” by Pericles, as recorded by I VOTE to GRANT the petitions.
Thucydides in the History of the Peloponnesian War.
DISSENTING OPINION
497
CHICO-NAZARIO, J.:
498
_______________
498
1 The full text of the Preamble reads:
499
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 VOL. 505, OCTOBER 25, 2006
observations in connection with my concurrence.
499
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 Lambino vs. Commission on Elections
subordinate—the will of the people. No less than its very first
paragraph, the Preamble,1 expressly recognizes that the
Constitution came to be because it was ordained and Under Section 1 of the said Article, proposals to amend or
promulgated by the sovereign Filipino people. It is a principle revise the Constitution may be made (a) by Congress, upon a
reiterated yet again in Article II, Section 1, of the Constitution, vote of threefourths of all its Members, or (b) by constitutional
which explicitly declares that “[t]he Philippines is a democratic convention. The Congress and the constitutional convention
and republican State. Sovereignty resides in the people and all possess the power to propose amendments to, or revisions of,
government authority emanates from them.” Thus, the the Constitution not simply because the Constitution so
resolution of the issues and controversies raised by the instant provides, but because the sovereign people had chosen to
Petition should be guided accordingly by the foregoing delegate their inherent right to make such proposals to their
principle. representatives either through Congress or through a
constitutional convention.
500 _______________
SUPREME COURT REPORTS ANNOTATED 3 G.R. No. 127325, 19 March 1997, 270 SCRA 106.
constitutional mandate to provide for the implementation of the
right of the people under that system.
501
502
_______________ 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
5 Id., at p. 124.
Court therein. As explained by former Chief Justice Hilario G.
Davide, Jr. in his separate opinion to the Resolution in the
PIRMA case—
6 Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213
SCRA 321, 328329; See also the more recent cases of Republic
v. Nolasco, G.R. No. 155108,
“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
503 substantially identical to the latter, except for the reversal of the
roles played by the principal parties and
503
27 April 2005, 457 SCRA 400; and PH Credit Corporation v.
Court of Appeals, 421 Phil. 821; 370 SCRA 155 (2001).
deny that they were founding members of PIRMA, and by their
arguments, demonstrated beyond a shadow of a doubt that they
7 Supra note 2 at p. 124. had joined Delfin or his cause.
8 G.R. No. 129754. 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
504 no further elaboration.”9
504 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
SUPREME COURT REPORTS ANNOTATED 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
Lambino vs. Commission on Elections
_______________
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. 9 Separate Opinion of former Chief Justice Hilario G. Davide,
Jr. to the Resolution, dated 23 September 1997, in G.R. No.
129754, PIRMA v. Commission on Elections, pp. 2-3.
The principal petitioner here is the PEOPLE’S INITIATIVE
FOR REFORM, MODERNIZATION, AND ACTION
(PIRMA) and Spouses ALBERTO PEDROSA and CARMEN 505
PEDROSA. PIRMA is self-described as “a nonstock, 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 VOL. 505, OCTOBER 25, 2006
PEDROSA and CARMEN PEDROSA” as among its
“officers.” In Santiago, the PEDROSAS were made
respondents as founding members of PIRMA which, as alleged 505
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. Lambino vs. Commission on Elections
The decision in Santiago specifically declared that PIRMA was parties; and (d) there must be between the first and second
duly represented at the hearing of the Delfin petition in the actions, identity of parties, of subject matter and of causes of
COMELEC. In short, PIRMA was intervenor-petitioner action.10
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 Even though it is conceded that the first three requisites are
was “[l]ater identified as the People’s Initiative for Reforms, present herein, the last has not been complied with.
Modernization and Action, or PIRMA for brevity.” In their Undoubtedly, the Santiago case and the present Petition involve
Comment to the petition in Santiago, the PEDROSA’S did not
different parties, subject matter, and causes of action, and the 506
former should not bar the latter.
For these reasons, I find that the COMELEC acted with grave
abuse of discretion when it summarily dismissed the petition for
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
10 Mirpuri v. Court of Appeals, 376 Phil. 628, 650; 318 SCRA after the certification by the Commission on Elections of the
516, 537 (1999). sufficiency of the petition.
The COMELEC should not be allowed to shun its constitutional Lambino vs. Commission on Elections
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
ever petitioners attempt to twist the language in Santiago, the
supported by 6.3 million signatures of registered voters. Should
conclusion is inevitable; the portion of R.A. No. 6735 was held
all of these signatures be authentic and representative of the
to be unconstitutional.”
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 It is important to note, however, that while the Decision in the
by silencing their voice based on a patently inapplicable Santiago case pronounced repeatedly that Republic Act No.
permanent injunction. 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
II
former Chief Justice Davide to the Resolution in the PIRMA
We should likewise take the opportunity to revisit the case, which was not concurred in by the other members of the
pronouncements made by the Court in its Decision in the Court.
majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the
Even assuming arguendo that the declaration in the Santiago constitutionality of the statute.
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— 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
[A]ll presumptions are indulged in favor of constitutionality; satisfied the completeness and sufficiency of standards tests for
one who attacks a statute, alleging unconstitutionality must the valid delegation of legislative power. I fully agree in the
prove its invalidity beyond a reasonable doubt (Victoriano v. conclusion made by Justice Puno on this matter in his dissenting
Elizalde Rope Workers’ Union, 59 SCRA 54 [1974). In fact, opinion12 in the Santiago case, that reads—
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 “R.A. No. 6735 sufficiently states the policy and the standards
presented (Tropical Homes v. National Housing Authority, 152 to guide the COMELEC in promulgating the law’s
SCRA 540 [1987]). 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,
First, the Court, in the Santiago case, could have very well the Constitution, laws, ordinances, or resolutions passed by any
avoided the issue of constitutionality of Republic Act No. 6735 legislative body upon compliance with the requirements of this
by ordering the COMELEC to dismiss the Delfin petition for Act is hereby affirmed, recognized and guaranteed.” Spread out
the simple reason that it does not constitute an initiatory all over R.A. No. 6735 are the standards to canalize the
pleading over which the COMELEC could acquire jurisdiction. delegated power to the COMELEC to promulgate rules and
And second, the unconstitutionality of Republic Act No. 6735 regulations from overflowing. Thus, the law states the number
has not been adequately shown. It was by and large merely of signatures necessary to start a people’s initiative, directs how
inferred or deduced from the way Republic Act No. 6735 was initiative proceeding is commenced, what the COMELEC
worded and the provisions thereof arranged and organized by should do upon filing of the petition for initiative, how a
Congress. The dissenting opinions rendered by several Justices proposition is approved, when a plebiscite may be held, when
in the Santiago case reveal the other side to the argument, the amendment takes effect, and what matters may not be the
adopting the more liberal interpretation that would allow the subject of any initiative. By any measure, these standards are
Court to sustain the constitutionality of Republic Act No. 6735. adequate.”
It would seem that the
III
509
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
VOL. 505, OCTOBER 25, 2006
additional thoughts on the matter.
509
Oppositors to Lambino and Aumentado’s petition for initiative
argue that the proposed changes therein to the provisions of the
Consti-
Lambino vs. Commission on Elections
_______________
12 Santiago v. Commission on Elections, supra note 2 at pp. republican state. It will still be a representative government
170-171. 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.
510
_______________
Lambino vs. Commission on Elections
IV
SEPARATE OPINION
Lastly, I fail to see the injustice in allowing the COMELEC to
give due course to and take cognizance of Lambino and VELASCO, JR., J.:
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 Introduction
voters all over the country, be summarily dismissed.
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
Giving due course and taking cognizance of the petition would
hand, and on the other the restraints of legality and the authority
not necessarily mean that the same would be found sufficient
of tradition.
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 —John Acton
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
In this thorny matter of the people’s initiative, I concur with the
require the reception and evaluation of evidence of the
erudite and highly persuasive opinion of Justice Reynato S.
Puno upholding the people’s initiative and raise some points of
my own.
512
The issue of Charter Change is one that has sharply divided the
Lambino vs. Commission on Elections
nation, and its proponents and opponents will understandably
take
The Congress shall provide for the implementation of the clusion of the Constitution in RA 6735 as an afterthought.
exercise of this right. 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
In the Santiago case, the Court discussed whether the second
power to propose amendments as they saw fit. It is a basic
paragraph of that section had been fulfilled. It determined that
precept in statutory construction that the intent of the legislature
Congress had not provided for the implementation of the
is the controlling factor in the interpretation of a statute.3 The
exercise of the people’s initiative, when it held that Republic
intent of the legislature was clear, and yet RA 6735 was
Act No. 6735, or “The Initiative and Referendum Act,” was
declared inadequate. It was not specifically struck down or
“inadequate to cover the system of initiative on amendments to
declared unconstitutional, merely incomplete. The Court
the Constitution, and to have failed to provide sufficient
focused on what RA 6735 was not, and lost sight of what RA
standard for subordinate legislation.”2
6735 was.
With all due respect to those Justices who made that declaration,
It is my view that the reading of RA 6735 in Santiago should
I must disagree.
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
Republic Act No. 6735 is the proper law for proposing for which they have been enacted.4 The reading of the law
constitutional amendments and it should not have been should not have been with the view of its defeat, but with the
considered inadequate. goal of upholding it, especially with its avowed noble purpose.
Congress has done its part in empowering the people “This petition must then be granted and the COMELEC should
themselves to propose amendments to the Constitution, in be permanently enjoined from entertaining or taking
accordance with the Constitution itself. It should not be the cognizance of any petition or initiative on amendments on the
Supreme Court that stifles the people, and lets their cries for Constitution until a sufficient law shall have been validly
change go unheard, especially when the Constitution itself enacted to provide for the implementation of the system
grants them that power. (emphasis supplied).
The court’s ruling in the Santiago case does not bar the present We feel, however, that the system of initiative to propose
petition because the fallo in the Santiago case is limited to the amendments to the Constitution should no longer be kept in the
Delfin petition. cold; it should be given flesh and blood, energy and strength.
Congress should not tarry any longer in complying with the
The Santiago case involved a petition for prohibition filed by constitutional mandate to provide for the implementation of the
Miriam Defensor-Santiago, et al., against the COMELEC, et al., right of the people under that system.”
3 Commission on Audit of the Province of Cebu v. Province of “WHEREFORE, judgment is hereby rendered
Cebu, G.R. No. 141386, November 29, 2001, 371 SCRA 196,
202.
4 United Harbor Pilots’ Association of the Philippines, Inc. v. b) DECLARING R.A. 6735 inadequate to cover the system of
Association of International Shipping Lines, Inc., G.R. No. initiative on amendments to the Constitution, and to have failed
133763, November 13, 2002, 391 SCRA 522, 533. to provide sufficient standard for subordinate legislation;
_______________
516
_______________
“Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It may
8 G.R. No. 129754, September 23, 1997. 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
518 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
518 suppressed or whether the whole document should be replaced
with an entirely new one.