G.R. Nos. 72915, Etc Phil Bar Assoc Vs Comelec
G.R. Nos. 72915, Etc Phil Bar Assoc Vs Comelec
G.R. Nos. 72915, Etc Phil Bar Assoc Vs Comelec
EN BANC
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RESOLUTION
Gentlemen :
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Separate Opinions
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actually vacate his office in favor of the Speaker who would then be the
Acting President until a new one shall have been elected and shall have
qualified. . . . In prescribing the procedure to fill the office of President in
case of vacancy therein occurred during the term of President Marcos, it
[the cited section] excluded any discretion on the part of the Batasang
Pambansa to legislate on the same subject. In fact, given the very detailed
and precise steps to be taken by the Batasang Pambansa under [the first
four paragraphs] for the purpose of calling a special election to fill the
vacancy, there was no room for legislative action to supplement the same.
BP Blg. 883 which is a reproduction of Cabinet Bill No. 7, is in conflict with
the Constitution in that it allows the President to continue holding office
after the calling of the special election. To put it another way: the
President's offer to cut his term short is valid. The trouble is he does not go
far enough: he should actually vacate the office forthwith." 1/ DCISAE
In the interval of over two weeks between December 3rd and now,
supervening facts and events have overtaken the Court and the petitions
at bar so much so that many of the petitions were withdrawn expressly or
abandoned impliedly. The political parties have since chosen and
proclaimed their candidates for president and vice-president and the
frenzied campaign is in full swing. President Ferdinand E. Marcos is
quoted as saying: "we have already spent a lot of energy and money on
this thing." 2/ The foremost exponent of the Act's unconstitutionality, M.P.
Arturo Tolentino who strongly held that "Mr. Marcos is not intended by the
Constitution to succeed himself before 1987 for an additional six years"
and that "the President must first resign from office in order for the
constitutional mandate to go into effect and for the Batasan speaker to
assume the post of Acting President" 3/ had laid aside his "personal
objections" against the bill's validity and has accepted the ruling KBL's
nomination as vice-presidential candidate with President Ferdinand E.
Marcos as candidate for reelection in the scheduled February 7, 1986
national elections. The heretofore divided opposition has unified and
likewise presented their standard bearers Corazon "Cory" Aquino and
former Senator Salvador "Doy" Laurel, for president and vice-president,
respectively. President Marcos himself in his letter to the Batasang
Pambansa 4/ "irrevocably vacati(ng) the position of President effective only
when the election is held and after the winner is proclaimed and qualified
as President by taking his oath office ten (10) days after his proclamation"
urgently stresses that "there is no moment to lose", that "I am, therefore,
left no choice but to seek a new mandate in an election that will assess, as
demanded by the opposition, the policies and programs I am undertaking.
Such an election necessarily shortens my tenure. But the necessity arises
from no less than the time-honored principle of public accountability,
inherent in a democracy and explicit in our Constitution" and that the "final
settlement of these issues can be achieved only through a presidential
election."
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exercise. Indeed, the Filipino nation has been titillated by the prospect of a
change." He quotes MP Renato Cayetano's plea that "(I)t is only fair for the
Supreme Court to tell the parties and the people whether the questioned
law is only part of a charade or a serious attempt to seek a new mandate
for the incumbent in Malacañang. Cayetano says 'Any delay will only
exacerbate the political situation. The Supreme Court should not contribute
to the possible destabilization of the government. The consequences could
be horrifying.'" 6/
Retired Chief Justice Enrique M. Fernando and former Senator
Ambrosio Padilla as amici curiae have likewise urged the Court not to
prevent the electorate from giving expression to the people's sovereign will
at the scheduled national election. Chief Justice Fernando has submitted
that "such a vacancy arising from a voluntary act of an incumbent of the
Presidential office inspired by the desire to seek a fresh mandate from the
sovereign people is a novel situation not contemplated by the framers of
the 1981 amendments to the 1973 Constitution." Senator Padilla noting
that both the President and the Batasang Pambansa having acted in favor
of the holding of the scheduled national election, submitted that the Court
should defer to the exercise of the people's public right to vote and to
express their judgment, since there is no issue or question more political
than the election. AHEDaI
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various political camps but also from other sectors as well. The prevailing
sentiment seems to be this — waiting for the 1987 Presidential race may
be too late for reasons already properly articulated in other forums."
I wish to express my appreciation for the valuable insights and
perceptions that the three distinguished amici curiae have furnished the
Court at the hearings. The events that have transpired since December
3rd, as the Court did not issue any restraining order, have turned the issue
into a political question which can be truly decided only by the people in
their sovereign capacity at the scheduled election, which hopefully will be
clean, fair and honest. (Let there be a fervent prayer that the Comelec with
its past flip-flopping decisions and orders as recorded in our jurisprudence,
will this time realize that any further desecration of a free and fair election
process will spell disaster for the cause of the peaceful democratic
process.) The Court cannot stand in the way of letting the people decide
through their ballot, either to give the incumbent president a new mandate
or to elect a new president.
PLANA, J.:
which are appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the constitution, are
constitutional." (M'Culloch v. Maryland, et al., 4 Wheat. 316.) That standard
remains valid till now.
Accordingly, I vote to dismiss the petitions.
ESCOLIN, J., separate opinion:
elected and shall have qualified. Their term of office shall commence
at noon of the tenth day following proclamation, and shall end at
noon on the thirtieth day of June of the sixth year thereafter."
As held in Gamboa, et al. vs. CA, 108 SCRA 1, [o]ne of the ways of
terminating official relations is by resignation. To constitute a complete and
operative resignation of public office, there must be an intention to
relinquish a part of the term, accompanied by the act of relinquishment and
a resignation implies an expression of the incumbent in some form,
express or implied, of the intention to surrender, renounce, and relinquish
the office and the acceptance by competent and lawful authority. In Our
jurisprudence, acceptance is necessary for resignation of a public officer to
be operative and effective, "otherwise the officer is subject to the penal
provisions of Article 238 of the Revised Penal Code. . . . ." (Emphasis
supplied) In the light of the abovecited case, actual vacancy need not exist
on the day of the election. When, therefore, the Batasang Pambansa,
representing the people, enacted Batas Pambansa Blg. 883 on December
2, 1985 and the President approved it the following day calling for the
elections on February 7, 1986, it, in effect, accepted the resignation
tendered by the incumbent on November 11, 1985 seeking a new mandate
from the people "in an election that will assess, as demanded by the
opposition, the policies and program I am undertaking. Such an election
necessarily shortens my tenure . . ." (Annex B, G.R. No. 72923). Thus, his
term of office was cut short by sixteen (16) months. As a consequence,
there is justification for the holding of an election before May 1987. Stated
differently, had the President not issued the letter-resignation, dated
November 11, 1985, the Batasang Pambansa was without authority to
enact Batas Pambansa Blg. 883, otherwise known as Cabinet Bill No. 7.
But, with the issuance of said letter-resignation, the Batasan and the
President were well within their constitutional powers to enact said law
which would give the people the chance to exercise its will through the
electoral process — an attribute of sovereignty. TSHEIc
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All members of this Court have taken an oath "na aking itataguyod at
ipagtatanggol ang Saligang Batas ng Pilipinas." We do not preserve and
defend the Constitution through a circumvention of its requirements and an
ignoring of its mandates.
The policy nature of their concerns and the passion of politics now
animating them may mitigate the inattention of the Batasan and the
Executive to scrupulous compliance with Section 9, Article VII of the
Constitution. We cannot enjoy the same luxury. I personally feel that during
these critical times, more than in happier days, we should insist on
compliance with the rule of law in its punctiliously authentic form. National
interest and political stability cannot be premised upon violations of our
fundamental law. Political expediency and the momentary, easily forgotten
cry of the public are too precarious and shifting to become legal
foundations of a free and hopefully prosperous society. Indeed, much
depends on the forthcoming elections but even more is at stake in the
maintenance of constitutionalism upon which our democratic government
is founded and because of which popular and free elections are held.
I find no difficulty in concluding that Batas Pambansa Blg. 883 is
unconstitutional.
BP 883 calls a special election for president and vice-president. It is
elementary in the law of public officers that no valid appointment or
election to any public office may be effected if the office is not vacant. In
the normal course of events, the office of the President becomes vacant
upon the expiration of the term of an incumbent. A regular election fills the
vacancy. But we are not concerned with a regular election. There is a call
for a special or an emergency election. TcSHaD
A special election may not be called for just any purpose or on any
occasion. A special election becomes necessary only when a vacancy is
created by death, permanent disability, removal from office, or resignation.
I cannot accept the proposition that a simulated or fictitious vacancy is a
"vacancy" as understood in the law of public officers. The vacancy must be
real and in esse, not a parody or shadow of the real thing. In the same way
that death, disability, or removal from office must be actual and permanent
before the pertinent provisions of Section 9, Article VII of the Constitution
may come into play, so must a resignation be real and irrevocably
permanent. Inspite of all the learned arguments of distinguished counsel, I
still fail to see how special or emergency elections may be held for a
position which is not vacant. Or how the call for special elections can
become the means of creating in the future the now non-existent vacancy.
Or how a vacancy can come about only after special and emergency
elections to fill that very same vacancy have already been held. Credulity
can be stretched only too far.
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system. Section 13 of Article VIII provided that "the National Assembly may
withdraw its confidence from the Prime Minister only by electing a
successor by a majority vote of all its members." Executive power was
then exercised by the Prime Minister assisted by his cabinet. The
President was only a symbolic head of state. The National Assembly could
remove the Executive by majority vote but the Executive could also have
the Assembly dissolved and have the questions on fundamental issues
resolved by the people in so-called snap elections. ITAaCc
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for a fixed term of six years. Since the incumbent President was elected in
1981 for a term of six years beginning at noon on the 30th day of June of
1981 and ending noon of the same date six years thereafter when the term
of his successor shall begin, Batas Pambansa Blg. 883 had shortened the
term of the President without going into the process of amending the
Constitution. The shortening of the term of the office of the incumbent
President cannot be justified by the action of the President agreeing to
vacate his office on condition that a special election be held and the
winning candidate for said office is proclaimed and qualified as president
by taking his oath of office ten days after his proclamation. The President
can only shorten his term of office by unconditionally resigning therefrom
before its expiration in order that a vacancy is created and the Speaker of
the Batasan shall act as President and the Batas Pambansa shall call for
the holding of a special election to elect a president and a vice-president in
accordance with the provisions of Section 9 of Article VII of the
Constitution. aSTAIH
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I have reached this conclusion after the hearings and upon due
consideration of the arguments and submissions for the petitioners and the
respondents, the former Chief Justice E. M. Fernando, and other legal
luminaries, especially those of former Vice-President Emmanuel Pelaez in
an article entitled "UNCONSTITUTIONALITY OF THE 'SNAP' POLL", 1/
which he mentioned at the hearing as he gave his comments on the
constitutional issue before this Court. I reproduce herein-below the most
pertinent portions of his dissertation. 2/ I also find the observations of Atty.
Sedfrey Ordoñez in the petition and the reply filed for the Liberal Party and
former Senator Jovito Salonga as well as those of Atty. Raul Gonzales,
National Bar Association President, who appeared and argued at the
hearing, very persuasive enough to overcome the doubts I had entertained
earlier as to the alleged facial unconsitutionality of B.P. Blg. 883. I am,
however, unable to agree with former Vice-President Pelaez and others
who have stressed the unconstitutionality of the law in question but urged,
nonetheless, this Tribunal to allow its implementation by taking into
account "supervening events" transpiring since the filing of the petitions
and the "people's overwhelming desire to hold" the "snap" election, the
constitutional issue having "become a political one, beyond its [this Court's]
authority to enjoin."
While the practice followed under the Constitution and our election
laws has been to allow the President or an elective public official to submit
himself for re-election to the same office without vacating it (remaining in
office until the end of his term and during the election period), this
generally refers to a "regular" election, not to a special election called
precisely to fill up an existing permanent vacancy in the elective office. The
device or formula found in Section 9, Article VII, having been so conceived
and designed in detail to meet a possible sudden vacancy occurring during
a short period before the regular presidential election in 1987, respect for
the will of the Filipino people who ratified the constitutional amendment in
1984 demands, I think, no less than strict adherence to the afore-
mentioned succession provision. B.P. Blg. 883 constitutes, plainly, a
deviation from and evasion of that provision. SHDAEC
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2. On the third day after the occurrence of the vacancy, (a) at ten o'clock in
the morning, (b) the Batasan shall convene in accordance with its rules
without need of a call — the constitutional provision itself makes the call in
advance; and (c) within seven (7) days enact a law, (d) calling a special
election to elect a President and Vice- President; (c) not earlier than forty-
five (45) nor later than sixty (60) days from the time of such call.
"Please note how the Constitution goes into painstaking details. The
convening of the Batasan must be on the third day from the occurrence of
the vacancy — not on the first or second or fourth and so forth but on the
third. Even the hour of convening is set at ten (10) o'clock. The Batasan is
given a deadline of seven (7) days within which to enact a law calling for a
specified election. The candidates to be selected are specified — the
President and the Vice-President. The Batasan is given very little leeway in
fixing the date of the election: it must not be earlier than forty-five (45) nor
later than sixty (60) days after the call. This minuteness of detail had a
definite purpose, as we shall presently see.
"The provisions of the above-mentioned Section 9, Article VII, are contrary
to all traditional notions of constitution-making. The standard knowledge is
that a constitution must be couched in general terms, allowing the
legislature to flesh out the constitution's broad outlines with details. As
above-shown, however, the above-cited Section 9 does not follow the
traditions. The Constitution itself supplies the details. It allows the legislature
no leeway to do so.
xxx xxx xxx
"The foregoing circumstances reveal the clear intent of the Constitution: to
prohibit the Batasan from legislating at all on succession, except in the two
instances above-cited where the Constitution expressly authorizes it to do
so.
xxx xxx xxx
"The 'law' calling a special election under the presidential succession
provision, Section 9 of Article 7, is in effect, a measure sui generis wherein
the Constitution has acted both as the fundamental law of the land and as
the legislature pre-empting any claim of the Batasang Pambansa to any
legislative authority to change or replace the constitutionally prescribed
procedure of presidential succession.
"The claim that the Batasang Pambansa may now, in the exercise of its
power of general legislation, enact a law on presidential succession to call a
special election, under circumstances other than those enumerated in the
Constitution, thereby amending and short-circuiting the very precisely laid
down procedure in Section 9, Article VII on the subject, is utterly baseless.
Neither Article VII (on powers of the President and Vice-President) no
Article VIII (on the powers of the Batasan) of the Constitution grants it the
authority claimed.
xxx xxx xxx
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"If the vote is in the affirmative, the President would then have the necessary
weapon to counteract what he believes to be a campaign of destabilization
against him . . .
"If the vote is in the negative, then the President should resign without delay.
A vacancy in the Presidency would then occur, in which case the
constitutional succession procedure would be operative . . .
"2. Another alternative would be to amend the Constitution. The Batasan
should meet as a constituent assembly and approve a resolution proposing
an amendment to the Constitution authorizing the calling of a special
presidential election more or less in the manner proposed in Cabinet Bill No.
7 or as may be agreed between the majority and the minority in the
Batasan. The resolution should then be submitted to the people in a
plebiscite . . .
"In either case, the Constitution shall have been shielded from further
assaults on its supremacy . . ."
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